A few interesting accounts of Joe Biden on criminal justice
In the criminal justice arena, I have come to think of Joe Biden as a Zelig-like figure: out of a desire to fit in politically, Biden seems to be inclined to take on the criminal justice character of the era. For that reason, I expect he would prove to be somewhat reform-minded (though still pretty mainstream) were he to become President in 2021. My framing and thinking here is reinforced by a number of new press articles on Biden and criminal justice:
While there are a lot of interesting elements to these pieces, I especially liked this portion of the NPR piece:
More clemency, eliminate mandatory minimums, restore federal parole and legalize marijuana is a pretty good accounting of my priority wish list for federal criminal justice reform. If Biden were to champion all these reforms in the months ahead, I would need a better adjective for him than Zelig-like. via Blogger http://jehtroolewis.blogspot.com/2020/06/a-few-interesting-accounts-of-joe-biden.html June 11, 2020 at 06:24PM
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[Ilya Somin] Israeli Supreme Court Strikes Down Law Authorizing Expropriation of Palestinian Private Property for Transfer to Israeli Settlers—and Cites my Work on Eminent Domain in the US in the Process
[The decision distinguishes US Supreme Court cases allowing the government to transfer property from one private party to another for almost any "public purpose."] Yesterday, the Israeli Supreme Court of Israel issued a major ruling barring expropriation of privately owned Palestinian land on the West Bank for transfer to Jewish settlers. The New York Times has a summary of the decision:
While this is by no means the most important aspect of the case, the ruling extensively cites my book Eminent Domain: A Comparative Perspective (co-edited with Hojun Lee and Iljoong Kim); specifically, the chapter I wrote on the history and development of eminent domain in the United States. They also cited my 2011 testimony on eminent domain abuse before the US Commission on Civil Rights (pp. 50-53). The did so to rely on my analysis of US Supreme Court cases like Kelo v. City of New London and Berman v. Parker, which held that the government can take private property and give it to another private owner for virtually any "public purpose" that might potentially benefit the general public in some way. The Israeli ruling concludes that these cases are different from the one before it, and can be distinguished on various grounds (this is where they build on my work somewhat). While, in the US cases, the government claimed that the taking in question would benefit the general public by eliminating urban blight (Berman) or by promoting "economic development" (Kelo), the Court concluded that the Israeli expropriations were much more clearly intended to simply benefit one social "group" (Jewish settlers) by taking land from another (Palestinian Arab property owners). Ultimately, the Court ruled that the expropriation of private Palestinian lands in order to build homes for Jewish settlers violates the private property provision of the 1992 Israeli Basic Law, which has quasi-constitutional status and has been held by the courts to supersede ordinary legislation. In my work on the subject, I have been highly critical of Kelo, Berman, and other similar decisions, which I have argued grossly misinterpret the Public Use Clause of the Fifth Amendment from the standpoint of both originalism and living constitutionalism. Very tentatively, I would suggest that the Israeli Court might have done better to say that these US decisions are highly questionable even in the American context, and that Kelo in particular has been subject to widespread criticism. Even the author of that ruling, the late Supreme Court Justice John Paul Stevens, admitted that he made a serious error in his majority opinion for the Court. Thus, the Israeli Supreme Court need not have felt any need to square its own rulings with these decisions (which, of course, are not binding on other countries). But, in fairness, there is a long history of efforts to interpret Kelo and Berman more narrowly, so as to allow greater scope for judicial protection for property rights. I go over many of them in my book The Grasping Hand. What the Israeli Court has done strikes me as well in line with a number of post-Kelo rulings by some federal and state courts striking down "pretextual" condemnations (which I analyzed in Chapter 7 of my book and in this article). It is not unusual for the Israeli Supreme Court (and high courts in Canada and many European countries) to cite and rely on US and other foreign constitutional law decisions as the Israeli court did here. The practice is far less common in the US, where it is much more controversial. It is somewhat ironic (though entirely predictable, in context) that the Israeli left is praising this ruling strengthening protection for private property rights, while the right is angry about it. I may have more to say when an English translation of the decision becomes available. The analysis above relies on a discussion of the Hebrew text with leading Israeli takings scholar Ronit Levine-Schnur, who coauthored an amicus brief in the case supporting the Palestinian property owners, and whose own work on takings is also cited by the court. Ronit, of course, is not responsible for any mistakes I may have made in this post. For now, I will only add I do not have a strong opinion on the legal correctness of this ruling, as I lack relevant expertise on Israeli law. I do welcome the substantive result, as it strengthens protection for private property rights against expropriation. I have long argued that such protection is important for enhancing individual liberty, protecting the rights of vulnerable minority groups, and promoting economic development in both the United States and many nations around the world. via Blogger http://jehtroolewis.blogspot.com/2020/06/ilya-somin-israeli-supreme-court.html June 11, 2020 at 11:24AM
[Eugene Volokh] UCLA Business School Lecturer Placed on Leave for E-Mail to Student Rejecting Request for Exam "Leniency" for "Black Students"
Long-time Anderson School of Management lecturer Gordon Klein got an e-mail from a student, whom he had before in another class as well, and with whom he had cordially exchanged e-mails in the past; to quote Inside Higher Ed (Colleen Flaherty),
Prof. Klein responded:
Various UCLA students then demanded that he be fired; and for his e-mail alone, as best I can tell from multiple news sources, he has been suspended by the Anderson School. The Foundation for Individual Rights in Education just sent a letter about this to the UCLA legal office:
Via Law http://www.rssmix.com/ via Blogger http://jehtroolewis.blogspot.com/2020/06/eugene-volokh-ucla-business-school.html June 11, 2020 at 11:24AM
ANOTHER MID-WEEK REMINDER of exciting DEPC and OJPC sentencing project: "Drafting Contest: An Ohio 'Second Look' Statute"
I warned in this initial posting that I would be repeatedly promoting an exciting new project from a partnership of the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law and the Ohio Justice & Policy Center (OJPC). The basic details are explained on this webpage, more background appears in this document, and here are the essentials:
via Blogger http://jehtroolewis.blogspot.com/2020/06/another-mid-week-reminder-of-exciting.html June 11, 2020 at 06:24AM [Josh Blackman] The PROMESA Board Members are not "Officers of the United States." So what are they?6/10/2020
[Josh Blackman] The PROMESA Board Members are not "Officers of the United States." So what are they?
[Article IV Territorial Officers Hold “Office[s] under the Authority of the United States,” and are bound by the Sinecure Clause.] [This post is co-authored with Professor Seth Barrett Tillman] Recently, the Supreme Court decided Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC. This case considered the status of members of the Financial Oversight and Management Board for Puerto Rico, who are appointed by the President without the Senate's advice and consent. These positions were created by The Puerto Rico Oversight, Management, and Economic Stability Act of 2016 (PROMESA). All nine Justices agreed that the appointment of these board members is not subject to the strictures of the Appointments Clause: that is, appointment by the President, with advice-and-consent by the Senate. All nine Justices also agreed that these board members are not "officers of the United States." However, the Justices parted company on the next question: what precisely are the PROMESA board members? The majority opinion by Justice Breyer punts on this question. Justice Thomas's concurrence hints at the answer. And Justice Sotomayor's concurrence suggests these board members occupy some other type of position in a "zone of twilight." This case illustrates that the precise characterization of federal positions is important. We cannot simply presume that the Constitution indiscriminately refers to different types of "offices" and "officers." Our taxonomy provides a better answer: Article IV Territorial Officers Hold "Office[s] under the Authority of the United States," and are bound by the Sinecure Clause. Justice Breyer's Majority OpinionJustice Breyer's majority opinion is largely consistent with our reading. He makes three broad points. First, Justice Breyer suggests in at least four places that all "officers of the United States" must be appointed pursuant to the Appointments Clause (emphases added):
We agree. The Appointments Clause provides:
In our view, the phrase "Officers of the United States" refers to appointed positions in the Executive and Judicial Branches. This language does not refer to appointed positions in the Legislative Branch. The Appointments Clause defines the phrase "Officers of the United States," and, generally, how they are appointed: all such appointments are made to positions, which have been established by federal statute, in the executive and judicial branches. This category includes principal officers and inferior officers. Each of these positions must be created "by law"; that is through bicameralism and presentment. And all of these positions must be appointed. We acknowledge that these statements could be consistent with an alternate reading of the Appointments Clause: that there are some "officers of the United States" who are not appointed. In other words, the Appointments Clause only refers to those "officers of the United States" who are appointed. But there are other elected "officers of the United States." Some scholars, for example, maintain that the President is an "officer of the United States." We disagree with this position for reasons we will explain in a forthcoming paper. But we do not think Justice Breyer was hinting at this alternate view. Rather, the Court seems to be saying that all "officers of the United States" must be appointed pursuant to the Appointments Clause. Second, Justice Breyer recognizes that the phrase "officers of the United States" has limits. That is, not all positions–or, even, all appointed positions–created by federal statute are "officers of the United States." Here, he writes that the creation of "local offices," whose duties are "primarily local in nature," takes the Board members outside the ambit of the Appointments Clause.
Third, Justice Breyer acknowledges that if the Board members are not "officers of the United States," they must be "some other type of officer."
What is that "other type of officer"? Justice Breyer does not give a direct answer. But he hints that there may be other types of federal officers.
That is, a federal law can create another type of federal officer, even one that resides outside the three branches: for example, the Article IV territorial officers on the PROMESA Board. Justice Thomas's Concurring OpinionJustice Thomas also concludes that the PROMESA "Territorial officials" are not "officers of the United States." But he relies on different reasoning than does the majority:
Justice Thomas suggests that positions that are not authorized by Articles I, II, and III–in our view, positions outside the three branches of government–are not "officers of the United States." (We do not think Article I positions, like Representatives, Senators, as well as appointed positions in the Legislative Branch, such as the Clerk of the House and the Secretary of the Senate, are "officers of the United States.") Therefore, a position created pursuant to Article IV cannot fall within the ambit of the Appointments Clause. But what are the PROMESA Board members if they are not "officers of the United States"? Where do such "territorial officials" fit within the Constitution's taxonomy of "offices" and "officers"? Justice Sotomayor's Concurring OpinionJustice Sotomayor "reluctantly concur[red] in judgment." She agrees with the majority that the PROMESA Board members are not "officers of the United States." But she suggests that they should be considered "officers of Puerto Rico."
Justice Sotomayor added that the Board members float in a "twilight zone of accountability."
We love this sterling allusion to Justice Jackson's Youngstown concurrence allusion. And, like the prior opinions, the concurrence does not resolve where the PROMESA Board members fall in the Constitution's taxonomy. Article IV Territorial Officers Hold "Office under the Authority of the United States"Article IV territorial officers are not "officers of the United States." They are not appointed pursuant to the Appointments Clause. Moreover, we think these territorial officers do not hold "office . . . under the United States." These positions exist outside the three branches of the federal government. Justice Thomas's concurrence alludes to this point in the passage we quoted above. According to Justice Thomas, the power to authorize territorial positions comes from Article IV; therefore such positions are not within the three branches of government. But there is another phrase in the Constitution that provides a more natural fit for Article IV territorial officers. The Ineligibility Clause, also known as the Sinecure Clause, states, "[n]o Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been [i]ncreased during such time. . . ." This Clause is the only provision in the Constitution that uses the phrase "civil Office under the Authority of the United States." Who holds such an office? In our view the phrase "civil Office under the Authority of the United States" encompasses all officers of the United States, but also refers to a broader category of irregularly appointed officers. Congress has the authority to "grant letters of Marque and Reprisal." These letters authorized private parties (known as privateers) to engage in hostilities against foreign states, and seize property. The holders of such letters have an irregular type of federal position, at least by modern conceptions. Such holders have a special authority conferred upon them, and their positions are outside the regular or permanent government, and its bureaucracy. We think the Ineligibility Clause, also known as the Sinecure Clause, places limits on who can receive a letter of Marque and Reprisal. The PROMESA Board members are best considered "office[s] under the authority of the United States." In our view, the PROMESA Board Members are subject to the Sinecure Clause. The positions were created by the 114th Congress in 2016. As a result, members of the 114th Congress could not have been appointed to PROMESA during the 114th Congress. This prohibition makes some sense, especially because the positions could be appointed without Senate advice-and-consent. If PROMESA Board members were not subject to the Sinecure Clause, the President could reward loyal members of Congress with potentially lucrative positions and emoluments. The Sinecure Clause was designed to eliminate this risk of self-aggrandizement. Members of the House of Representatives who were in the 114th Congress can now be appointed to PROMESA. Senators in office during the 114th Congress would be bound by the Sinecure Clause in until circa January 2021. Many scholars read the phrase "officers of the United States" in an expansive, if not quasi-literal fashion. They argue that this phrase includes all federal positions, but excludes state positions. The Supreme Court has now recognized that there are some federal positions, i.e., positions created by federal statute, that are not "officers of the United States." This holding provides some judicial recognition that the phrase "officers of the United States" is not all-encompassing. In other words, the Court has rejected the maximalist reading of the phrase "officer of the United States." Justice Breyer wrote that "[t]he language at issue does not offer us much guidance for understanding the key term 'of the United States.'" Why? He explained, "[t]he text suggests a distinction between federal officers—officers exercising power of the National Government—and nonfederal officers—officers exercising power of some other government." But the Court rejects that simplistic distinction. Rather, the dividing line between who is and who is not an "officer of the United States" is not a mere federal-versus-state dichotomy. According to both Justice Breyer, as well as Justice Thomas, the answer is far more complex. The Court and the concurrences do not draw that line based on a literal reading of the word "officer" and the modifying phrase: "of the United States." Instead, the Court carefully considered historical practice–and in particular the practices of the First Congress. We have long argued (and long before President Trump's election) that the Framers used divergent "office"- and "officer"-language throughout the Constitution to refer to different categories of positions. The phrase "officers of the United States" is not coterminous with the phrase "office . . . the United States." To this day, important legal questions turn on these distinctions. For example, does the President hold an "office . . . under the United States" for purposes of the Foreign Emoluments Clause? In the PROMESA case, the Court held that territorial officers are not "officers of the United States" even though these positions are established by a federal statute. For that reason and others, we submit, courts should not simply assume that the President automatically holds an "office . . . under the United States," solely because he holds a federal position. We intend to share our comprehensive article on the Offices and Officers of the Constitution in due course. Via Law http://www.rssmix.com/via Blogger http://jehtroolewis.blogspot.com/2020/06/josh-blackman-promesa-board-members-are.html June 11, 2020 at 04:24AM
My Father: The Inspiration Behind Justice in Conflict
In writing for Justice in Conflict, and in my career more generally, I have tried not to get too personal. Separating the personal from the professional is unspoken custom in journalism and academia, professions that endeavour to observe and describe the world with objectivity. Though I know that it is impossible for us to totally detach ourselves from what we put out to the world, it is important to try. Perhaps that is why, when people have asked me why I am interested in justice and conflict, I have been unsure how to answer. I would most often reply that the coverage of arrest warrants issued by the International Criminal Court (ICC) against former Sudanese President Omar al-Bashir was what got me hooked. To some extent it’s true; it is what sparked my intellectual energy and interests on the relationship between peace and justice. But I also knew that there was more. I was interested in justice and fairness long before the ICC targeted Bashir and the international community collectively fretted over its impact on resolving the war in Darfur. In recent years, I began to understand more clearly that it is because of my family that I care about what I care about. Now more than ever, I understand just how much it was because of my father. My father, Gregory Edmund Kersten, died unexpectedly and suddenly on 26 May 2020. I will be coming to terms with that for many months and years to come. Having dedicated my life’s work to studying and trying to understand the world, I have difficulty understanding it without him in it or why it seems to continue on the same without him. But I can say that he left a legacy, one which I will work to ensure is a lasting one. This blog is part of his legacy, though readers are surely unaware of that fact. I want to change that. More than anyone, my dad encouraged me to write. When I experienced down times or anxiety in my life, he would tell me to work and, especially, to write. I would find solace in doing so. I still do. In 2010, he told me that it would be a good idea to start a blog to focus my energy and interests. I never imagined JiC becoming what it has become. So many of the opportunities that I’ve had and the professional relationships that I’ve developed are due to this site – and are therefore because of my father. He regularly read JiC, and would tell me which pieces he enjoyed, comment on them, and offer constructive criticism. Of course, he would also point out where I had left spelling errors, which was a bit less fun. My father was wedded to his principles, none of which resonates more clearly than in his commitment to fairness. It did not always make him an easy person. I did not always agree with him. We often argued ferociously. But even when I thought he was wrong, I knew he was wrong for all of the right reasons. Weeks later, I would often find my own arguments shaped by his. My dad’s principles were not instilled in him through an easy life. My father was born four years after World War II ended, and grew up in communist Poland under difficult personal and political circumstances. In the 1970s and 1980s, he worked in underground publishing for the anti-Communist Solidarity / Solidarność movement with his parents and my mother. From a very early age, I found their contribution to the resistance and the whittling away of autocratic rule fascinating. It inspired me. That fascination manifests itself in my desire to work on global justice and accountability initiatives and to write openly about regimes and governments complicit or actively engaged in human rights violations. My father left Poland just before Martial Law was officially lifted with his wife Greta and my two siblings, Marta and Mik. In 1983, they drove to Antwerp, Belgium, in a car on ‘vacation’, crossing into free Europe at Checkpoint Charlie. I can’t imagine the exchange of tension and relief that he must have felt upon making it through the Berlin Wall, with the weight of all of that responsibility resting on his shoulders. Years later, I found it moving to realize that I worked in the field of international justice for an NGO, the Wayamo Foundation, that was based on territory that my family fled just 30 years prior, behind the Iron Curtain. The transformation is remarkable. During the Cold War, regular emigration to ‘the West’ wasn’t permitted. As they departed Poland, it was not clear to my parents if and when they would see their family and friends again. From Belgium, they applied to emigrate to Canada. Nine months to the day after they arrived on 14 December 1984, I was born. Immigrating to Canada from a context of political violence and structural oppression opened up many opportunities for my family, as it has for so many others who begin new lives on Turtle Island. But it took an enormous amount of work for my parents to succeed here. While improving his English, my father became a university professor, and devoted his life to the field of negotiation and group decision-making. It is a theme that I would take up in my work in international criminal justice. It brought me great joy that, while we came to the field of negotiation from different angles, we owned some of the same books and the same dedication to mediating disputes. Throughout his life, my father’s sense of fairness was unwavering and indiscriminate. He rejected any notion that power or wealth should determine who got justice or who was treated with dignity. He also believed, to his core, that conflicts of all kinds could be resolved if we simply spoke to each other and communicated. While he did not suffer fools lightly, my father was the most generous person that I have known. Since his death, I have been astounded by the number of people who have reached out with stories about how he touched their lives. He spent hours of his day working with students and colleagues, speaking to them on the phone or online, hosting them at his home – sometimes for weeks. It has been touching, comforting, and heartbreaking to know that I am only one among so many who will miss him. I hope that some of my father’s principles and faith in humanity resonate through the pages of this site. The blog will continue to serve as a place where students, advocates, and scholars alike can have their say on matters of international and transitional justice. Meanwhile, my family and I are committed to continuing my father’s work and legacy. In 2011, he started the Kerstens’ Foundation in honour of his parents, Adam and Krystyna, both acclaimed Polish historians. The Foundation has offered scholarships to Polish graduate students for almost a decade. As one way to remember him, we are working to create a scholarship in his memory, in the hopes of fostering in young people the principles that he stood for. Those principles are the ones that this blog has stood for and will continue to stand for, for many years to come. I do not believe that my father is ‘gone’, but rather that he lives in and among the many people who loved him. Still, I miss my father beyond what mere words can express. Thank you, as always, for reading. Mark Via Law http://www.rssmix.com/via Blogger http://jehtroolewis.blogspot.com/2020/06/my-father-inspiration-behind-justice-in.html June 11, 2020 at 04:24AM
Split Sixth Circuit panel vacates district court order to transfer vulnerable prisoners "out of Elkton through any means"
A few months ago, as detailed here, US District Judge James Gwin granted a preliminary injunction ordering federal officials to identify, and then start moving out, medically vulnerable prisoners from the Elkton federal prison in Ohio. Federal officials appealed this order to the Sixth Circuit, but a Sixth Circuit panel refused initially to stay it, and thereafter Judge Gwin issued this follow-up order which stated that "Respondents have made poor progress in transferring subclass members out of Elkton through the various means referenced in the Court’s preliminary injunction Order." The feds ultimately was able to get these actions stayed by the Supreme Court, and late yesterday a split Sixth Circuit panel vacated the injunction upon concluding, by a 2-1 vote, "that the district court abused its discretion in granting the preliminary injunction." This Politico piece, headlined "Appeals court nixes order to shrink prison rolls because of virus," provides a usefully summary of the nearly 30 pages of opinions:
Prior related posts:
via Blogger http://jehtroolewis.blogspot.com/2020/06/split-sixth-circuit-panel-vacates.html June 11, 2020 at 04:24AM
"Sentenced to Surveillance: Fourth Amendment Limits on Electronic Monitoring"
The title of this post is the title of this notable new paper authored by Kate Weisburd and recently posted to SSRN. Here is its abstract:
via Blogger http://jehtroolewis.blogspot.com/2020/06/sentenced-to-surveillance-fourth.html June 11, 2020 at 04:24AM
Two notable recent studies detailing connections between incarceration and community spread of COVID-19
One important theme of much COVID-era advocacy for decarceration efforts (early examples here and here and here) was that reducing the density of jails and prisons, and thereby slowing the spread of coronavirus, is critical not just for the well-being of incarcerated persons, staff and their families, but also for the communities and the general public around prison facilities. In recent days, I have seen these two interesting new studies that explore various connections between incarceration and local community spread of this harmful virus: Incarceration And Its Disseminations: COVID-19 Pandemic Lessons From Chicago’s Cook County Jail by Eric Reinhart and Daniel Chen:
Incarceration Weakens a Community’s Immune System: Mass Incarceration and COVID-19 Cases in Milwaukee Preliminary Results by Gipsy Escobar and Sema Taheri
via Blogger http://jehtroolewis.blogspot.com/2020/06/two-notable-recent-studies-detailing.html June 11, 2020 at 02:24AM
[Josh Blackman] Today in Supreme Court History: June 10, 1916
6/10/1916: Justice Charles Evans Hughes resigns. Via Law http://www.rssmix.com/ via Blogger http://jehtroolewis.blogspot.com/2020/06/josh-blackman-today-in-supreme-court_10.html June 10, 2020 at 11:24PM |