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How can presidential candidates show they are serious about dismantling mass incarceration? Pledge to appoint public defenders to the bench.


What you’ll read today

  • Spotlight: How can presidential candidates show they are serious about dismantling mass incarceration? Pledge to appoint public defenders to the bench.

  • One simple way to hold bad prosecutors accountable

  • Booker swipes at Harris and Sanders for joking about marijuana

  • Twin Cities prosecutors announce new marijuana policies

  • Oregon bill would prohibit using dogs to force incarcerated people out of their cells

  • Plaintiff in landmark immigration case becomes a citizen

In the Spotlight

How can presidential candidates show they are serious about dismantling mass incarceration? Pledge to appoint public defenders to the bench.

In the days after President Trump was elected, the despair among those who fight for social and environmental justice ranged from alarmist to apocalyptic, but one group remained somewhat optimistic: criminal justice reformers. The idea was that, because federal prisons housed only about 13 percent of the overall prison population, and because most policing and prosecution happens at the local level, the president couldn’t really tank reform efforts, even if he tried. There is plenty of truth to that argument, and, since the election, we have seen some wonderful reforms, but, I am very sorry to report, the optimism overlooked a crucial factor: federal judges.

As Kyle Barry, senior legal counsel at The Justice Collaborative, wrote this week in Slate, pro-law enforcement judges have, in many ways, shaped the way local criminal legal systems function: “It is nearly impossible to sue police for civil rights violations because of the judge-made doctrine of ‘qualified immunity.’ It is even harder to sue prosecutors. Federal judges also set policing standards that govern searches, interrogations, and the use of force.” These decisions “often reflect a bias for prosecutors and aggressive policing while the lawyers who best know what’s at stake, who know how these critical decisions impact real people, are excluded.” Those lawyers are public defenders. [Kyle C. Barry / Slate]

In the New York Times, Yale law professor James Forman wrote last week: “Judges have held that the Fourth Amendment doesn’t prohibit police from racially profiling drivers during traffic stops, that the Sixth Amendment permits trials with underfunded defense lawyers who present little evidence or argument, and that the Eighth Amendment is no bar to outrageous sentences like life without parole for drug possession.” He was discussing NYU Law Professor Rachel Barkow’s new book, “Prisoners of Politics: Breaking the Cycle of Mass Incarceration.” “How did our legal landscape become this anti-defendant? In part because so many federal judges are former prosecutors. Barkow reports that 43 percent of federal judges have been prosecutors, while 10 percent have been public defenders.” [James Forman Jr. / New York Times]

Barry reviewed the Senate Judiciary Committee questionnaires for all of Trump’s 143 confirmed or pending judicial nominees who have submitted one (a handful of recent nominees have not). He learned that not a single one has worked full-time as a public defender in the state or federal systems. “By contrast, more than one-third of Trump’s nominees have worked as prosecutors.” [Kyle C. Barry / Slate]

This is in line with mainstream thinking on both the left and the right, which views prosecutors as somehow neutral and well suited to the job of being a judge, and sees defense attorneys as radical zealots. More than 40 percent of President Barack Obama’s judicial nominees were prosecutors, outnumbering public defenders three to one. And Obama nominated Merrick Garland, a former prosecutor, to the Supreme Court, choosing him over Jane Kelly, a former public defender. “Once Kelly, a judge on the 8th U.S. Circuit Court of Appeals, was reported to be a finalist, conservative groups used her public defense experience to launch a smear campaign and paint her as a threat to law and order.” [Kyle C. Barry / Slate]

Barry suggests that “a pledge to appoint at least as many public defenders as prosecutors to the federal bench is a tangible way for presidential candidates to show commitment to dismantling mass incarceration while at the same time charting a path forward for the courts.” Similarly, Forman writes that Democratic candidates should promise to reshape the federal bench “so that it has as many former public defenders as it does former prosecutors.” The Supreme Court, he suggests, “is a good place to start.”

But the public can do more than hope that presidents appoint public defenders to the federal bench. When prosecutors are nominated, voters should interrogate their records, talk to defense attorneys who have seen them at work, and read court transcripts, to find out whether the nominee sought convictions at the expense of justice. If the nominee claims to be even-tempered and neutral, intrepid investigators can seek out whether the nominee refused to make reasonable plea offers or withheld exculpatory evidence, for example.

And when it comes to state-level judges, the ones who administer criminal justice every day, progressives can do even more: They can vote public defenders into office. Four such candidates recently ran, and lost, in San Francisco. But last month, recently elected progressive commissioners in Harris County, Texas, rejected an audacious funding request from the local prosecutor to expand her office by one-third. Instead, they chose to expand the public defender’s office.

Barry told the Daily Appeal that public defenders can do their part, too. They shouldn’t give in to the conventional wisdom, either: They should apply for federal judgeships when there are vacancies, or run for elected judicial positions at the state level. They should “make the case for why the bench needs more public defense representation, and actively push to change the prevailing narrative on judges.”

Stories From The Appeal

Peter Calloway and Jeff Adachi

One Simple Way To Hold Bad Prosecutors Accountable. State bar organizations have the power to discipline prosecutors, but they studiously ignore bad behavior. [Peter Calloway and Jeff Adachi]

Stories From Around the Country

Booker swipes at Harris and Sanders for joking about marijuana use: “We have presidential candidates, senators, bragging about their pot use while there are kids who can’t get a job because they have a nonviolent offense for doing things that two of the last three presidents did,” Cory Booker, a senator and presidential candidate, said in an interview with MSNBC this week. At a recent town hall, he said, “In 2017, we had more arrests for marijuana possession in this country than all the violent crime arrests combined.” Kamala Harris and Bernie Sanders, both senators and presidential candidates,recently attracted attention for joking about their past use of marijuana. “Do not talk to me about legalizing marijuana unless in the same breath you talk to me about expunging the records of millions of people” with marijuana convictions, he added. Booker says that he has never smoked marijuana, in part because his parents made him aware that, as a young black man, he could expect no mercy from the justice system. [Robert Mackey / The Intercept]

Twin Cities prosecutors announce new marijuana policies: The chief prosecutors of Minnesota’s two largest counties, Ramsey County Attorney John Choi and Hennepin County Attorney Mike Freeman, have announced less-stringent policies on marijuana prosecution. They effectively involve pushing more cases of possession or sales toward diversion programs, at times without filing charges first. These reforms fall short of other prosecutors’ announcements that they would simply drop cases of marijuana possession, especially since both policies added many exceptions and carve-outs to their promises of diversion. [Daniel Nichanian/ The Appeal: Political Report]

Oregon bill would prohibit using dogs to force incarcerated people out of their cells: The Oregon Senate passed a bill yesterday that would prohibit jails and prisons from using dogs to take people out of their cells by force. In 2017, a 48-year-old man was mauled by a dog in his cell for failing to come out. The incident was caught on video, and the man was awarded $251,000 in a settlement. “Snarling dogs should never be used to intimidate or discipline frightened people, regardless of whether they are in a correctional institution,” said state Senator Sara Gelser. “It is inhumane and cruel.” The bill, which has the support of the Oregon State Sheriffs’ Association, still allows using dogs for tracking, searching for contraband, quelling disturbances, preventing escapes, and to address immediate health or safety risks. Six states allow police to use dogs to forcibly remove people in custody from their cells. [KTVZ]

Plaintiff in landmark immigration case becomes a citizen: In Padilla v. Kentucky, the U.S. Supreme Court decided that criminal defense attorneys are required to advise noncitizen clients about the deportation risks of a guilty plea.

Thanks for reading. Have a great weekend.

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