The Atlantic - Latest Comments in Welcome To The Party

Re: Welcome To The Party

Gex — Tue, 01 Dec 2009 01:19:59 -0000

Weird. I remember it a bit differently. I seem to recall liberals always being on the defensive because they were accused of being soft on crime. It turns out liberals are TOO hard on crime? Who knew?

In any event, why waste your time with these always not quite right liberals when you can vote conservative: JUST RIGHT ON CRIME. NOT TOO HARD, NOT TOO SOFT.

Re: Welcome To The Party

toxic — Tue, 24 Nov 2009 19:59:09 -0000

I guess Todd, but its not realistic to think that the average criminal is fully aware of their constitutional rights. Using the Miranda warnings as a way to stripping the ignorant of their constitutional rights is a rather devilish side effect of the warnings.

It's not to say that we shouldn't warn people, that's fine. It's using that initialed Miranda warning as a legalistic dodge to avoid actually providing defendants with their rights, that is my problem with it.

Re: Welcome To The Party

toxic — Tue, 24 Nov 2009 19:16:20 -0000

Its not intellectually dishonest; it's dishonest to pretend that the difference between the commerce of 1776 and 2009 is the issue. Tell you what--- give me an example of commerce from 1776 that was intrastate by the modern rule. It also can't be done, because the definition of interstate commerce is so broad as to encompass virtually everything (not just commerce in any meaningful sense of the word, but pretty much any human activity), and would have done so at any time in American history. You're argument is that hey, that shit is old fashioned, so its ok for the court to pervert the language of the constitution to make it "modern". That is an exceptionally dangerous attitude to take, as the precedent that its ok to bend or break the constitution as long as people really like a particular policy is not one that you would want to hand to people who don't believe the way you do. There is a way to fix the constitution when it is inadequate to modern needs; it's been done 26 times or so. Intentionally misinterpreting the document is not a valid way to do amend the constitution. And that is what happened with the commerce clause.

As a simple matter of logic, the current interpretation does not fly. You can't wave that away with "expansive language." And I'm not an originalist--- I am simply arguing that an to be valid, and interpretation of the constitution be internally consistent and logically valid. It's not policy prescriptive at all; it's just that as a baseline, it should be a logically valid statement. That's not a very high bar.

And while I realize as a practical matter that overturning the modern commerce clause interpretation is essentially impossible, that does not change the fact that it is based on a logical fallacy. It does not change the fact that the checks and balances placed on the federal government's power were designed to contain a far weaker entity. In short, the 80 years of precedent means nothing as far as this discussion goes. But thanks for trying a classic appeal to authority.

Toddbbq, is the modern interpretation of the commerce clause in any way consistent with the language of the clause? If so, how?

Re: Welcome To The Party

toddbbq — Tue, 24 Nov 2009 19:04:42 -0000

But Toxic, doesn't that less to do with Miranda, and more with people's ignorance of their constitutional rights?

Re: Welcome To The Party

toddbbq — Tue, 24 Nov 2009 18:06:13 -0000

I take it you're an originalist. There's a reason the framers used expansive language. To compare commerce in the late 18th century, an agrarian society, to today's society is intellectually dishonest.

Not only that, you'd do away with almost 80 years of precedence.

Re: Welcome To The Party

toxic — Tue, 24 Nov 2009 17:26:23 -0000

I'm suggesting that reading off a ritual warning doesn't necessary do the defendant's right to counsel and silence justice. It's kind of like the the quick blurb at the end of an informercial where they mention all the details of the offer. Sure, you were technically warned, but it doesn't mean that you truly understood those warnings, especially when you are under a lot of psychological pressure. Hell, what's your position on mentally handicapped people & Miranda rights? Can Forrest Gump really intelligently waive his right to attorney?

A lot of people are not really clear on where their rights end and begin. In my own line of work, there are any number of people who think you can be tossed in jail for failing to pay your payday loans. This is a belief that is promoted by payday loan companies. It's total bullshit. Point being, I think that each interrogation should be judged on its own facts as to whether it was reasonable. Miranda warnings do little to inform defendants of their rights, while in fact stripping them of that protection by giving the police a safe harbor.

Re: Welcome To The Party

Byrk — Tue, 24 Nov 2009 17:09:32 -0000

What do you suggest then? That adults can't make up their mind, even when informed of their rights? At some point you just have to let people make mistakes. My suggestion for anybody who's arrested or questioned as a suspect to say absolutely nothing to the police and get a lawyer. If you're a suspect they already think you're guilty and you've nothing to gain by saying anything.

That's not to say there aren't other protections we can't put in. I'm 100% for video taping of all interrogations so that suspects don't confess prior to being read their rights due to beating them, coercion etc., and then afterwards turning on the camera just for the confession part.

Re: Welcome To The Party

Greg Dodge — Tue, 24 Nov 2009 15:36:48 -0000

TNC: I'm pretty familiar with Constitutional stuff, including Scalia/Thomas's views and even Doug Berman's in general.

Scalia and Thomas have some idiosyncratic views and over time they have obviously sided with the government more than defendants, but compared with Roberts/Alito or Rehnquist before them, they really do stand at the forefront. Indeed, Justice Breyer has basically been a disappointment when it comes to criminal law. He's a technocrat and basically always sees the state's solution to the problem as the best. Maybe that's good with environmental regulations, less good when the solution is to put every felon-in-possession in jail under a mandatory regime for 25-30 years.

I think Berman is specifically talking about two areas where the Court's majority has been bipartisan: The "Confrontation Clause" cases, where Scalia has helped redefine the right to "confront your accuser in court" by taking a stronger view than had prevailed before. The old idea was it was constitutional for the prosecution to use transcripts or out of court evidence so long as it comported with the federal rules of evidence -- you didn't have a chance to cross examine the witness -- tough luck. Here is that case: http://www4.law.cornell.edu/supct/html/02-9410.ZO.html

Even more significantly are the sentencing cases. I'm sure you haven't kept up with this but this is a huge area that is misunderstood. Basically, with the rise of more crimes have also seen the rise of these sentencing regimes. The idea was to avoid disparity but the result was that you could be convicted of, say, "robbery" by a jury beyond a reasonable doubt, but then a judge would up and find a variety of "factors" based on his own deal by a lower standard ("a preponderance of the evidence"). Justices Stevens, Ginsburg, and Souter said that's bogus, but Breyer, O'Connor, and Kennedy, usually people you hope for, said it was okay. To the rescue have been Scalia and Thomas, who have written some pretty impressive opinions on this issue. And this is no small potatoes. The entire federal sentencing scheme was struck down in 2005 and made advisory (kind of complicated) rather than mandatory, largely because of an opinion Scalia wrote in 2004. The key opinion from Scalia is Blakely v. Washington. http://www4.law.cornell.edu/supct/html/02-1632.ZS.html

He often frames this in his own "originalist" terms, but, as always with Scalia, when he's on your side, you'll take him because he's such a good writer. From Blakely:

"The implausibility of Justice Breyer’s contention that Apprendi is unfair to criminal defendants is exposed by the lineup of amici in this case. It is hard to believe that the National Association of Criminal Defense Lawyers was somehow duped into arguing for the wrong side. Justice Breyer’s only authority asking that defendants be protected from Apprendi is an article written not by a criminal defense lawyer but by a law professor and former prosecutor. . . .

". . . Ultimately, our decision cannot turn on whether or to what degree trial by jury impairs the efficiency or fairness of criminal justice. One can certainly argue that both these values would be better served by leaving justice entirely in the hands of professionals; many nations of the world, particularly those following civil-law traditions, take just that course. There is not one shred of doubt, however, about the Framers’ paradigm for criminal justice: not the civil-law ideal of administrative perfection, but the common-law ideal of limited state power accomplished by strict division of authority between judge and jury. As Apprendi held, every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment. Under the dissenters’ alternative, he has no such right. That should be the end of the matter.

"Petitioner was sentenced to prison for more than three years beyond what the law allowed for the crime to which he confessed, on the basis of a disputed finding that he had acted with “deliberate cruelty.” The Framers would not have thought it too much to demand that, before depriving a man of three more years of his liberty, the State should suffer the modest inconvenience of submitting its accusation to “the unanimous suffrage of twelve of his equals and neighbours,” 4 Blackstone, Commentaries, at 343, rather than a lone employee of the State."

Re: Welcome To The Party

toxic — Tue, 24 Nov 2009 13:59:12 -0000

To elaborate, pretend this is the commerce clause:

"to regulate golden retrievers dogs, shih-tzu's dogs, and wolf hound dogs."

It is implicit in this statement that the authors believe that there are more than those three types of dogs; otherwise they just would have said "dogs". So any interpretation of that statement to grant the state full dog-regulatory powers makes no internal sense, just as a matter of logic, regardless of whether it is a good idea for the government to have dog regulating powers or not.

Re: Welcome To The Party

toxic — Tue, 24 Nov 2009 13:52:10 -0000

"To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes".

There are three explicit types of commerce mentioned in the clause; foreign nation commerce, interstate commerce, Indian Tribe commerce. There is also an implied form of commerce, which is none of those things. The implicit intrastate commerce must exist, because if it did not, there would be no reason to list the types of commerce the federal government does have control over. Just as a matter of logic, it is clear that the people who wrote that believed that the were excluding some kind of commerce from the control of the federal government.

Now, I will give you $500 bucks if you can find something that, under the modern interpretation of the commerce clause, is commerce but not interstate commerce. Can't be done. The modern commerce clause doctrine is essentially the same as the "butterfly flaps its wings in Japan, therefore it rains in Florida" argument. There is not a single commercial activity that occurs in America that isn't "interstate" commerce, according to the modern interpretation. And yet, any interpretation of the commerce clause must allow for some kind of intrastate commerce, however small and insignificant that might be, to be logically coherent. Any interpretation of the clause that does not allow for some intrastate commerce clause is, ipso facto, logically incoherent. The modern interpretation does not allow for existence of something that is both commerce and intrastate. Therefore, it is logically incoherent, and those propounding it are engaging in sophism.

Re: Welcome To The Party

toddbbq — Tue, 24 Nov 2009 12:44:09 -0000

That train left the station a long, LONG time ago.

Re: Welcome To The Party

toddbbq — Tue, 24 Nov 2009 12:42:02 -0000

I would take another tack, and say that the criminal justice system is out of control because of the Supreme Court tacking on a de facto police power (the power to legislate for the public welfare) through mangling the commerce clause, at the behest of FDR. The founders intentionally deprived the federal government of this power. The Supreme Court gave it this power through sophism.

I suck at the block quoting thing, but do you care to elaborate here? I understood you to mean that you disagree with most of the last 70 years of commerce clause analysis. Is that including the "substantial affects" test?

Re: Welcome To The Party

Fosters Grant — Tue, 24 Nov 2009 12:27:58 -0000

Metis - i think you've got it. The Confrontation Clause cases, and to a more limited extent the Search and Seizure cases tend to get the originalists (Scalia, Thomas) lined up against the government. But those cases are more the exception than the rule in my opinion. Scalia and Thomas' recent dissent in In re Davis sums it up for me:

" Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable."

http://supremecourtus.gov/opinions/08pdf/08-1443Scalia.pdf

This is part of Scalia and Thomas' overarching deference to state court procedure, and that if the state says he's guilty, there is no right to avoid your sentence based on actually being innocent. See Herrera v. Collins, 506 US 390 (1993). Pretty draconian in my book.

Re: Welcome To The Party

toxic — Tue, 24 Nov 2009 12:18:46 -0000

The Miranda warnings are not clearly beneficial to defendants. In fact they may be harmful, in that the defendant is on the record acknowledging they understand their rights, etc., when in fact they probably don't really get it. It provides a bright line that allows the prosecution to make a lot of gray areas into black and white areas. Sure, the defendant might be scared & stupid. He might not really understand the implications of what he is doing. He might not feel like he really has the right to say no. The police encourage this belief as much as they can, then whip off some legalese at the guy, he says yes, and the whole 5th amendment goes out the window.

Re: Welcome To The Party

toddbbq — Tue, 24 Nov 2009 12:13:13 -0000

Precisely. Scalia's opinion in Crawford is brilliantly written. You have no idea how much it pains me to write that. I remember reading it and saying, "Dammit, why couldn't this have been written by Stevens or Souter?!"

Without delving too deeply into constitutional law or theory, Crawford is right in line with his (and by extension Thomas')strict originalism. However, I submit Crawford is really more of an evidentiary opinion (the opinion dealt with a hearsay issue, which goes to the crux of the confrontation clause) rather than an criminal procedure opinion. While it ended up benefiting a criminal defendant, that was really secondary to maintaining fidelity to the text of the Constitution and the intent of the framers, which is the essence of originalism. In other opinions that dealt specifically with criminal procedure, Scalia's opinions fall in line with what you would expect. For example, take a look at his opinion in Montejo v. Louisiana, a case decided last spring, as well as Roberts' 2008 opinion in Herring v. U.S. which was joined by Scalia. Both of these cases significantly set back gains made by the Warren Court in criminal procedure.They've even hinted that the only reason that they wouldn't overturn Miranda if the opportunity presented itself is that its so ingrained in popular culture. Thank God for "Law and Order."

Re: Welcome To The Party

low-tech cyclist — Tue, 24 Nov 2009 12:00:47 -0000

When Meese says conservative "tradition has always been to construe criminal laws narrowly to protect people from the power of the state," let's not forget Meese's 1985 argument that Miranda warnings were unnecessary:

U.S. News: You criticize the Miranda ruling, which gives suspects the right to have a lawyer present before police questioning. Shouldn't people, who may be innocent, have such protection?

Meese: Suspects who are innocent of a crime should. But the thing is, you don't have many suspects who are innocent of a crime. That's contradictory. If a person is innocent of a crime, then he is not a suspect.

That's Ed Meese, as attorney general, protecting people from the power of the state.

Re: Welcome To The Party

Dredd — Tue, 24 Nov 2009 11:31:16 -0000

I will feel more welcome to a new party if things don't change for real. The temptation Meese must feel to wax revisionist is strong.

Revisionist ideology can be circumvented if we go back far enough until we realize our struggle has always been against the toxins of power more than it has been a struggle against those with different political ideas from ours.

Lets sit on a jury together and then the lights of judicial reason will shine brighter.

Re: Welcome To The Party

toxic — Tue, 24 Nov 2009 11:23:53 -0000

The federal government was never intended to have this much power. The checks and balances put into place to keep the federal government in check were designed to work on a government that had extremely limited power in the first place.

If you had a time machine and went back to the Constitutional Convention and said "Look, the federal government is going to get the police power whether you like it or, so you might as well give it to government, and then build your checks and balances around the new, powerful government", I guarantee you that the constitution would be a much different document. I don't know what they would have done, but it would have been different.

The federal government is fundamentally out of whack because the power it has is far greater than the checks and balances put into place to control the government. It's as if someone put a Corvette engine into a Toyota Yaris; sure it can go fast as hell, but the brakes and the powertrain--- well, they just weren't meant to deal with that kind of power.

Hence the tendency of the government to peel headlong into various brick walls--- medicare, social security, 100 to 1 crack/cocaine sentencing disparity, massive incarceration, Drug War, Iraq, Afghanistan, and all the rest--- because the power it has generates incredible momentum, and the brakes just aren't up to keeping things at a safe speed.

Re: Welcome To The Party

Dan — Tue, 24 Nov 2009 11:19:40 -0000

It's not that he has shifted his position or seen the folly of overincarceration, it's the same "my past makes me credible, but I'm going to argue against it for the sake of politics" that most Republicans are on these days.

One of the few Republicans to truly emerge from ideology (in part) and present logic for a change in his position is Bruce Barlett, one of the economists that formed the "trickle down" theory of the last 20 years.

Re: Welcome To The Party

Gingergene — Tue, 24 Nov 2009 11:10:10 -0000

When I read that article, my first thought was, "Why didn't Meese and Thornburgh have this impact when they were Attorney General and it could have made a real difference?" Meese was instrumental in implementing Zero Tolerance policies in the War on Drugs, and just now he sees the folly of overincarceration?

I think the key quote in the article is this one from Meese:

"We picked by accident a time," he said, "when it was not a very popular topic in light of corporate frauds

I don't think I buy that the timing was accidental at all.

Re: Welcome To The Party

Jordan — Tue, 24 Nov 2009 10:59:39 -0000

One of my favorite Bloom County cartoons involved an satellite array which included the "Meese Piece", designed to destroy convenience store pornography from orbit.

Re: Welcome To The Party

dean_venture — Tue, 24 Nov 2009 10:52:41 -0000

I think Scalia's most important contribution to criminal defendants' rights has been in the sentencing cases. This is a line of decisions that really reflects the strengths of originalism: the Sentencing Guidelines were a sort of technocratic innovation that became, over time, a mechanism for imposing incredibly harsh sentences. In a line of cases starting in the late 1990s, Scalia and four other justices established a new, bright-line constitutional rule: facts that increase a defendant's maximum sentence have to go to the jury.

These cases were very consequential, because, since the hyper-detailed facts governing the Guidelines don't get put in the indictment or proven to the jury, the Guidelines became optional. The guidelines reflected a lot of widely-discredited policies, like the crack/powder disparity: freeing judges to disregard the guidelines had a broadly pro-defendant impact.

(My description of the law here isn't technically accurate: judges can't exactly "disregard" the guidelines, but they don't have to follow them.)

Re: Welcome To The Party

MaddogPHL — Tue, 24 Nov 2009 10:37:53 -0000

Meese must have selective amnesia, because it was his party which ran the Willie Horton ad opposing prisoner furloughs, and successfully elected "law-and-order" candidates in so many places during the '80s and '90s. Scalia and Thomas concurred with the conservative majority in Ewing v. California to uphold California's three strikes law (authored by a Republican). It's nice that he's arguing for sensibility in criminal justice, but he and his ideological cohorts have to bear some responsibility for the current system instead of blaming just liberals. Limited-government conservatives should have spoken up during the Bush years, not just now.

Re: Welcome To The Party

Jonathan WR — Tue, 24 Nov 2009 10:37:22 -0000

You write: "I didn't get a sense of how Scalia or Thomas actually have changed things, short of swinging way too far right on criminal justice."

Scalia and Thomas have at times pushed toward making criminal defense rights more robust:

1. Crawford v Washington: Scalia writes a majority opinion making the confrontation clause much more robust (Thomas joins). Basically, the prosecution can't use statements against you unless they put the guy on the stand, make him say it to your face, and you can cross-examine him.

2. Sentencing: Scalia and Thomas spearhead the revolution in federal sentencing, which has resulted in the sentencing guidelines -- which drove very high sentences in the federal system -- becoming non-binding. Sentences are going down as a result.

3. County of Riverside v. McLaughlin: The constitution requires prompt bail hearings. How long should a state be able to lock a guy up before showing a judge that it has probable cause? Scalia wants to limit it to 24 hours. The majority, written by O'Conner, gives the state more time.

I'm not saying Scalia and Thomas are always on this side. But the claim is not an empty one.

Re: Welcome To The Party

Joshua Lyle — Tue, 24 Nov 2009 10:37:16 -0000

Police are just doing their job of enforcing the public morality that has been voted for.

"Police power" doesn't mean the force exerted by people in blue uniforms; it's a term of art for certain "inherent" functions of the state.

What does police power exist to enforce other than "public morals"?

Classically: public health, public safety, state security and sometimes public welfare.

We express our public morality be passing legislation to reflect it, including the definition of crime.

Within the context of the police power "public morals" has a somewhat specific meaning in that it isn't health, safety, security or welfare, which is not to say that it is somehow necessarily limited in application in any meaningful way.

Thats a bit of a strawman don't you think?

Not once you know what the words mean.