Wednesday October 7, 2020

Say it Louder We can’t fight COVID without criminal justice reform

Attorney General Loretta Lynch will be at ChangeLawyers’ 30th Anniversary celebration on October 21 >

Virtually overnight, COVID-19 laid bare our nation’s alarming vulnerability to a large-scale public health emergency, causing wrenching damage in all corners of American life. Fast-moving and deadly, the coronavirus has placed enormous pressure on our criminal justice system — our jails and prisons, courts and law enforcement agencies.

Here’s one disturbing snapshot: five states have a prison mortality rate more than eight times the rate for the general population, after adjusting for the sex, age and race or ethnicity of those incarcerated.

As former U.S. attorneys general, we are acutely familiar with the challenges facing our justice system, even in normal times. COVID-19 has raised the stakes significantly, and as the fallout intensified, we took on the task of co-chairing the National Commission on COVID-19 and Criminal Justice to help the system curb the pandemic’s impacts and increase its readiness for future emergencies.

Read the story on USA Today

More of This A Black gay man has been nominated to the California Supreme Court

California Gov. Gavin Newsom has nominated a candidate who could be the first openly gay justice and only the third Black man to serve on the state's highest court if confirmed.

Judge Martin Jenkins, a former NFL player for the Seattle Seahawks turned civil rights attorney and Alameda County prosecutor, has been nominated to serve on California's Supreme Court.

"Justice Jenkins is widely respected among lawyers and jurists, active in his Oakland community and his faith, and is a decent man to his core," Newsom said in a news release.

"As a critical member of my senior leadership team, I've seen firsthand that Justice Jenkins possesses brilliance and humility in equal measure. The people of California could not ask for a better jurist or kinder person to take on this important responsibility.”

Jenkins served as a judge on the Oakland Municipal Court from 1989 to 1992 before moving up the ranks to serve as a judge on the Alameda County Superior Court from 1992 to 1997. In 1997, he was appointed to the US District Court for the Northern District of California by former President Bill Clinton and served in that role until 2008.

Before joining the Newsom administration, Jenkins served as an Associate Justice on the California Court of Appeal, First Appellate District from 2008 to 2019.

I want to say today to those young people who may be watching and those who may hear about what has transpired here, I am not here in spite of the struggle, I'm here because of the struggle," Jenkins said in a press conference with Newsom on Monday.

"I want these young people to know that living a life of authenticity is the greatest gift you can give yourself, and if you do that, you too will find yourself in a position where people see you, they really see you for who you are. And I thank you, Gov. Newsom, for giving me this opportunity and for seeing me. “

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Speaking Of… Trump’s federal prosecutors are almost all white men

The nation’s top federal prosecutors have become less diverse under President Donald Trump than under his three predecessors, leaving white men overwhelmingly in charge at a time of national demonstrations over racial inequality and the fairness of the criminal justice system.

The Associated Press analyzed government data from nearly three decades and found that a persistent lack of diversity in the ranks of U.S. attorneys has reached a nadir in the Trump administration. Eighty-five percent of his Senate-confirmed U.S attorneys are white men, according to AP’s analysis, compared with 58% in Democratic President Barack Obama’s eight years, 73% during Republican George W. Bush’s two terms and at most 63% under Democrat Bill Clinton.

White men lead 79 of the 93 U.S. attorney’s offices in a country where they make up less than a third of the population. Nine current U.S. attorneys are women. Two are Black, and two Hispanic.

Federal prosecutors can have a profound effect on the criminal justice system and leadership holds an immense sway. Without a diverse group considering cases, bias can seep unnoticed into charging decisions and sentencing recommendations, undermine federal leadership with state and local law enforcement and chip away at the perceived legitimacy of the justice system.

The enduring imbalance leaves U.S. attorneys looking less like the people they serve, and is in stark contrast to the population of federal prisons, where a disproportionate share of those incarcerated are Black.

Read the story on AP

Less Of This Too Marriage equality is on the chopping block at the Supreme Court

On Monday morning, Justices Clarence Thomas and Samuel Alito reminded Americans that marriage equality is in imminent peril at the Supreme Court. Thomas, joined by Alito, wrote a screed in defense of Kim Davis, the Kentucky clerk who refused to issue marriage licenses to same-sex couples, painting her as a modern-day martyr. The two justices suggested that SCOTUS must overturn Obergefell v. Hodges, which recognized same-sex couples’ right to marry, in order to preserve religious liberty in the United States. “Davis may have been one of the first victims of this Court’s cavalier treatment of religion in its Obergefell decision,” Thomas warned, “but she will not be the last.”

It’s no secret that Thomas and Alito oppose equal rights for LGBTQ Americans. But their Monday opinion is still profoundly alarming. These two justices did not simply state that marriage equality has no basis in the Constitution. They wrote that marriage equality is an affront to the Constitution, one that trammels the First Amendment rights of Christians. And they did so just weeks before Election Day, as Donald Trump attempts to ram another far-right conservative onto the Supreme Court, creating a 6–3 conservative supermajority. Their message is clear: If Trump installs Amy Coney Barrett, the Supreme Court will take aim at marriage equality.

The Kim Davis saga began in July 2015 when two men walked into the clerk’s office in Rowan County, Kentucky, seeking a marriage license. SCOTUS had granted same-sex couples the right to marry in every state less than two weeks earlier. Davis refused to give the men a marriage license “on God’s authority.” They sued her, and the lower courts found that Davis was, indeed, liable for violating their constitutional rights. Davis asked the Supreme Court to throw out the case, which the justices unanimously declined to do on Monday.

Read the story on Slate

Perspective The reckless race to confirm Amy Coney Barrett justifies court packing

SUSAN HENNESSEY is a lawyer and the executive editor of Lawfare. 

Barely a week after the death of Ruth Bader Ginsburg, before the late justice had even been buried, President Donald Trump hosted a Rose Garden ceremony to formally announce his nomination of Amy Coney Barrett to fill the open seat on the Supreme Court. A week later, it appears that the inauspicious ceremony may have been at the center of the coronavirus outbreak now plaguing the White House and the Senate. Yet even with the president hospitalized and three Republican senators infected with the virus, the Republican Party is barreling ahead with its effort to install Barrett mere weeks before Election Day. The reckless rush to vote is an indication of the desperate and corrosive power grab at play, one that places the future of the Court at risk. If Republicans succeed, and Democrats win the Senate and the White House in November, Democrats must add seats for additional justices—not as a means of political one-upmanship, but, paradoxically, to save the Court.

For the past few years, court packing has largely been a fringe idea, promulgated by leftist scholars and activists infuriated by Senate Majority Leader Mitch McConnell’s refusal to hold Supreme Court confirmation hearings for Merrick Garland in 2016. For the most part, the Democratic establishment has been resistant to the notion, on the grounds that Republicans would someday surely try to respond in kind.

We understand these objections; until recently, we shared them, and dismissed court packing as institutionally corrosive and politically unserious. But no longer. The current battle over the Supreme Court changes the calculus; if Barrett is confirmed and Trump loses the election, adhering to norms and accepting the status quo on January 20 poses a greater harm than expanding the Court would. We have now come to believe, more in sorrow than in anger, that adding justices may be the only way to restore the institutional legitimacy of the Court.

Read the story on The Atlantic