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My Comments-Thread Comment to Robert Waldmann’s “From Small Town to Prison” Post

Robert Waldmann did something this morning that I’d planned to do: He posted an in-depth post about the NYT’s awesome article in yesterday’s paper titled “From Small Town to Prison,” by Josh Keller and Adam Pearce.

Robert makes a critical point about the fiscal cause of the phenomenon that the Times article reports on, and my rather lengthy comment to Robert’s post adds some things that I’d planned as the key point to my post.

Here is my comment in the Comments thread to Robert’s post:

“It is caused by prosecutorial discretion with laws which allow extremely long sentences combined with plea bargaining. If the sentence for the actual crime committed weren’t absurdly long, DAs would not be able to help their counties at the expense of the state.”

That certainly is true, but it also is caused by the complete takeover of the U.S. Supreme Court by the Conservative Legal Movement, which has removed any access to federal court in order to challenge through the habeas corpus process anything—and really, I do mean, as a practical matter, anything—that occurs in state or local court proceedings, however flagrantly violative of even basic constitutional rights.

For state-court criminal cases, these Supreme Court justices (not to be confused with justice; they’re justices, a title, nothing more) these people took an already awful federal-court jurisdictional statute that Bill Clinton cravenly signed in 1996 in order to avoid, y’know, soft-on-crime attacks during his campaign for reelection, and (very) effectively rewrote it to actually completely preclude federal habeas review of ANYTHING that transpires in ANY state or local court.

This was done in the name of states’-rights-to-violate-individual-rights-except-religion-gun-ownership-and -real-property constitutional rights. Er—I mean—in the name of FREEDOM. A.k.a., LIBERTY.

What I hadn’t realized, though, Robert is that because it’s the states that pay for state prisons, there is an incredibly strong incentive for these county DAs and judges to put everyone they can in prison, and or as long a time as is allowed—which according to the Supreme Court is as long as they want. One major achievement of the Conservative Legal Movement is that the Supreme Court has nullified the Eighth Amendment’s prohibition against cruel and unusual punishment.

A 12-year sentence for selling a handful of narcotic prescription painkillers, admittedly highly addictive drugs, is both cruel and (happily) unusual, and should be challenged as violating the Eighth Amendment. But under Supreme Court precedent from the current crowd+Antonin Scalia the lower federal courts probably would reject the argument.

I’m so glad you posted this post, Robert. I read the Times article yesterday and planned to include it in a post I plan to write soon whose main subject is my anger about the push by some progressive senators* and by some other progressives to get the Senate to confirm Merrick Garland to fill Scalia’s seat. This is beyond misguided. And it makes no sense.

The big, big progressive complaint about Garland is that he is pro-law enforcement, and especially pro prosecutor—and not all that concerned about such matters as specific constitutional rights such as Fourth Amendment search-and-seizure limitations and, well, other things. But Garland is, I guess, progressive on the kinds of things that corporate conservatives and culture-wars conservatives care about. In other words, he’s fine for conservatives on law-and-order stuff that is politically passe even among most Republicans, but is from the perspective of the Republican donor base and culture-wars base he’s not fine. So why push this guy? Why the hell was he even nominated, in the first place?

(Okay, he was nominated because Obama, like so many other political types, thinks it’s still 1988. But actually it’s not still 1988.)

There are more than a fair share of former prosecutors and other former government lawyers on the Supreme Court and the lower federal benches. There are almost no former criminal defense lawyers and civil rights lawyers on the federal bench at any level, and it’s been, like, forever since there’s been on the Supreme Court unless you count Ginsburg’s Women’s Issues legal background. It’s really, really, REALLY time for one. Or, hey, even two!

Hillary Clinton owes her nomination to African-Americans, and she may well owe her election to them. At a minimum, she’ll owe her large margin of victory to them, if it materializes. So I’ve been wondering: Who will be her first Supreme Court nominee? And her second one?

Everything about Hillary Clinton suggests that if she decides to pay attention to Blacks in her Court selections, she’ll go with appointing a second Black to the Court. I mean, hey—another first! Which she will conflate with, Hey! Someone who will actually matter to a significant numbers of African-Americans in what he or she DOES on the Court.

Which is not to say that that there are no African-Americans who would be terrific for the position; one I know of is an Obama appointee to the Fourth Circuit Court of Appeals, based in Richmond, VA. Or I should say, that’s my impression, although I don’t know all that much about him. But Clinton likely will just operate on the assumption that the specifics of the nominee don’t matter, other than the specifics of race.

My strong, strong preference would be Jeffrey L. Fisher, who was highlighted in one of NYT Supreme Court correspondent Adam Liptak’s occasional Sidebar articles last month titled “Criminal Defendants Sometimes ‘Left Behind’ at Supreme Court, Study Shows.”

And to replace Ginsburg when she retires next July, the drop-dead awesome Vanita Gupta, Obama’s current Justice Dept. Civil Rights Division chief. (Kudos, Mr. President!) Gupta would be the first Asian-American on the Court, which means Clinton actually might appoint her! She won’t appoint Fisher, although there’s no one in the country who could come close to having the impact that Fisher would have on the Court because of his victories at the Court in gaining Scalia’s vote on some major constitutional-criminal-law issues.

Anyway … I’ve inserted into your post a link to the Times article, and corrected a typo (“2006”, rather than “206”). Your posts get a lot of readers, and I hope this one will be no exception even though it’s not on economics, except of course indirectly.

And I want to add this: I would love to see Pence asked about this at his debate with Kaine. And if he’s not asked about it by the moderator, Kaine should raise the point.

Okay, so I guess I’ve now posted that post I’ve been planning to post about progressives trying to push through Garland’s confirmation.  Good; one more thing I can check off my to-do list.

Oh. The title I’d planned for it: “The Really Awful Advice That Some Dem Senators Are Giving to Clinton.” They want her to announce now that she will renominate Garland to the Court–the idea I guess being that the Republican senators might as well confirm him now, although I have no idea why, since she’d be promising to nominate him rather than a young liberal. Garland is in his mid 60s.

Even more bizarre than that argument, Harry Reid also advised Clinton** that she should renominate Garland even if she doesn’t promise, pre-election or pre-inauguration, to do so, because, they say, she’ll be too busy in the first few months of her term to have someone new vetted and then have her administration shepherd the nomination through the Senate.

Seriously; that’s what that article about this that I linked to above  says.* The theory being that the new administration won’t be able to chew gum and walk backward at the same time, and Supreme Court appointments aren’t important.

So there we have it. Some Senate Democrats’ advice to Clinton is to throw away a Supreme Court appointment because it’s just easier that way.

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NOTE: The last five paragraphs were added after original post was posted. 9/3 at 4:20 p.m.

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UPDATE: Reader Nihil Obstet posted this comment in the Comments thread:

One of the great successes of the elite is to weaponize the Supreme Court nomination process by limiting it to culture war issues. We have to vote for our party’s candidate because of abortion, affirmative action, religious freedom, gun regulation, and sexual orientation. Both Democratic and Republican politicians are very happy with those issues. When I’m told that the election is all about the Supreme Court appointment, my reaction is, “You’re not helping your cause by saying that it’s crucial to get more Merrick Garlands on the court.”

I’m not seeing any focus among progressives about the need to reverse the erosion of personal rights with regard to the power of the state and of the corporations.

I responded: Exactly.

Added 9/3 at 4:44 m.

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* Link corrected. 9/3 at 4:56 p.m.

** I erroneously said originally that “these senators” advised this.  But it was only Harry Reid who did, according to the article.  Apologies to Dick Durbin, Chris Coons and Chuck Schumer, the other senators the article mentions.  Also: Durbin apparently is playing a role in this because he is minority whip.  He’s one of my favorite senators, and so I’m a bit disappointed, but I guess he feels that as whip he has to participate in pushing for Garland’s confirmation. 9/3 at 5:08 p.m.

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