Get Informed

Subscribe to our newsletters for regular updates, analysis and context straight to your email.

Close Newsletter Signup

What if Justice Roberts gave criminal defendants do-overs like he did for the Trump administration? 


What you’ll read today

  • Spotlight: What if Justice Roberts gave criminal defendants do-overs like he did for the Trump administration? 

  • New Orleans youth crime: the epidemic that wasn’t

  • Pennsylvania police department accused of sexism

  • Bank of America will no longer fund private prisons (but Wayfair apparently will do business with them)

  • Pennsylvania becomes the first state to automatically seal criminal records

  • After transgender woman dies at Rikers Island, New York City officials are considering new limits on solitary confinement

In the Spotlight

What if Justice Roberts gave criminal defendants do-overs like he did for the Trump administration? 

The Supreme Court decision that came down yesterday, summarized in the tweet above, is the same decision that the New York Times editorial board called “a win for good government.” In the short term, that’s true. The Court yesterday refused to green-light the Trump administration’s plan to add a citizenship question to the 2020 census form. Experts have warned that adding the question would result in a significant undercount of households with at least one noncitizen member, and a shift of power and resources away from communities with high foreign-born populations. But in the majority’s ruling, Chief Justice John Roberts isn’t troubled by that. He called it “reasonable.”

Commerce Secretary Wilbur Ross had sworn before Congress that he decided to add the question “solely” in response to a Justice Department request for data to help it enforce the Voting Rights Act (a law that, incidentally, Roberts gutted in a 2013 majority opinion). But looking at the evidence, Roberts found that “the V.R.A. played an insignificant role in the decision-making process.” It was a pretext for an action that a Republican strategist (who has been described as the “Michelangelo of gerrymandering”)  suggested would “be advantageous to Republicans and non-Hispanic whites.” It is hard to imagine clearer evidence of an effort to deprive people of color of democratic power and equality.

But Roberts didn’t find that deprivation itself was a problem. “We do not hold that the agency decision here was substantively invalid,” Roberts wrote. “But agencies must pursue their goals reasonably,” which, in this case, “calls for an explanation for agency action.” It seemed at times Roberts wished he knew less about the government’s intent: “It is rare to review a record as extensive as the one before us when evaluating informal agency action—and it should be,” Roberts wrote. But “we cannot ignore the disconnect between the decision made and the explanation given.”

Roberts’s predicament in this case echoes his position when evaluating Trump’s travel ban last year, which he and the Court were inclined to uphold as perfectly legitimate, not motivated by religious hostility, if only it could get past Trump’s statements to the contrary, which it did. (The text of the order, Roberts noted, “says nothing about religion.”)

The tradition of allowing the government to discriminate as long as it can think up a good excuse extends to the courtroom. It’s what allows prosecutors to strike people of color from juries so long as they can think of a good enough reason for it. In the rare cases when they can’t, as happened multiple times to the prosecutor in the Curtis Flowers case that the Daily Appeal discussed yesterday, they are simply given a do-over. The prosecutor in Flowers’s case has received several such do-overs, and is running unopposed for an eighth term this year.

What if we handled criminal cases this way? Let’s say a man is accused of killing his wife. Let’s say there’s no question that he killed her, and he has already told police that he did it because she was having an affair. At trial, the judge leans over and tells the defendant, “Look, we’re all fine with this outcome, but killing someone for that reason just isn’t legal. If you could somehow come up with another reason, though, maybe we can work something out.” The defendant, if he’s rational, would come back and say “OK, judge, I acted in self-defense.” Case closed.

Criminal trials never go this way (with the possible exception of cases where police are accused of killing civilians). Ordinary criminal cases are more akin to what happened on the show “Seinfeld” when Jerry tried to return a suit “for spite.” An employee tells him that “spite doesn’t fit into any of our conditions for a refund,” so Jerry chooses a different rationale. But the manager is not persuaded: “No, you said spite. Too late.”

That is because in our system, criminal liability is based on “just deserts” (people “deserve” a penalty because they have committed wrongs) and deterrence (punishing certain behavior can prevent it). By both of those standards, killing in anger is a crime, and killing in self-defense is not.

When the government discriminates in these contexts, its intent is theoretically scrutinized, but the bar is so low that “just deserts” and deterrence are irrelevant. Which is to say, we don’t even try to say that government actors deserve punishment for this kind of wrongdoing, and we certainly create no incentives that would deter similar conduct in the future. (Wilbur Ross is still commerce secretary, after all.) 

And even if the scrutiny of governmental intent weren’t entirely toothless, it would still be misguided. This is because, in criminal cases, society is trying to redress past wrongs, but when reviewing government actions, the potential harm is generally in the future. Actual people will suffer if the census question is allowed, regardless of the government’s intent. Maybe, in both contexts, it’s time to consider standards that actually minimize harm, such as disparate impact for the government, and restorative justice in criminal cases. 

When reformers argue that our criminal system is cruel and does not create a safer or more equitable society, opponents often respond by saying none of that matters, because those who run afoul of laws deserve what’s coming to them. Wilbur Ross, on the other hand, apparently he should get a do-over. 

Stories From The Appeal

Orleans Parish District Attorney Leon Cannizzaro Photo illustration by Elizabeth Brown.
[Photo from the Orleans Parish DA website]

New Orleans Youth Crime: The Epidemic That Wasn’t. In rhetoric reminiscent of the ‘superpredator‘ scare of the 1990s, the New Orleans District Attorney warned of ‘a brazen population of delinquent teens.’ But advocates and crime analysts alike say the data doesn’t support his fearmongering claims about kids and crime. [Mike Hayes]

Pennsylvania Police Department Accused of Sexism. Brandi Courtesis lost her job with the Gettysburg force after saying a colleague sexually harassed her. The accused, fired for another reason, may be back in uniform soon. [Joshua Vaughn]

Stories From Around the Country

Bank of America will no longer fund private prisons: The bank, which was one of the last big Wall Street banks to fund the private prison industry, made the announcement Wednesday, one day after bank officials toured the Homestead center—a “private shelter near Miami that has been under attack for detaining migrant children for long periods in poor conditions,” according to Catherine Kim of Vox. “It’s run by Caliburn, a detention company partly financed by Bank of America. A report from the Miami Herald in May revealed the bank provided the shelter a loan of $380 million and a $75 million revolving credit line.” The move is “part of a growing trend of businesses turning their back on detention facilities, especially as the conditions for detained migrants grow more controversial by the day.” [Catherine Kim / Vox] Also on Wednesday, Wayfair employees walked off the job after they discovered that the company had sold $200,000 worth of furniture to a Texas detention center housing migrant children. [Abha Bhattarai / Washington Post]

Pennsylvania becomes the first state to automatically seal criminal records: Today, Pennsylvania became the first state to use an automated system to seal criminal records for all qualifying formerly incarcerated or arrested people in the state. In the first month of operation, an estimated 2.5 million cases will be sealed, and an additional 27.5 million are expected in the following year. Some localities have used similar technology to help people submit petitions to clear their records, but no state has automatically cleared the records of all eligible people before. Judges in Pennsylvania grant expungement in the manual petition system around 90 percent of the time, but less than 10 percent of eligible people actually have their records sealed because the process is lengthy and difficult to navigate, especially without hiring an attorney. Advocates say that automatic expungement solves this problem. [Emma Coleman / Route Fifty]

After transgender woman dies at Rikers Island, New York City officials are considering new limits on solitary confinement: Layleen Polanco was in solitary confinement when she died this month (the Daily Appeal covered her case in its June 13 edition). Although New York Governor Andrew Cuomo and the state legislative leaders have “shelved a bill that would have restricted the use of solitary confinement across the state,” New York City’s Board of Correction “is mulling new rules that would bring similar changes to local jails,” according to The City.  The new policies would reduce the maximum time allowed for a punitive segregation sentence to 15 days from 30. “The rules also would require a minimum of four hours of time outside of cells daily. Detainees currently can be locked alone in a cell for up to 23 hours straight.” [Rosa Goldensohn and Reuven Blau / The City]

Thanks for reading. We’ll see you on July 8.

Have a tip for The Appeal? Write to us at tips@theappeal.org. A good tip is a clear description of newsworthy information that is supported by documented evidence.

Get Informed

Subscribe to our newsletters for regular updates, analysis and context straight to your email.