Skip to content

Posts from the ‘Old Print Archives’ Category

Nov 9

The Problematic Presidential Pardon: A Proposal for Reforming Federal Clemency

White_Houseby JONATHAN T. MENITOVE

Shortly after 9:30 a.m. on January 15, 2009, Senator Patrick Leahy gaveled the Senate Judiciary Committee to order. Seated before the Committee was Eric Holder, then President-elect Barack Obama’s nominee to become the eighty-second Attorney General of the United States. As Senator Leahy used his opening statement to sing the nominee’s praises, the senator seated to Leahy’s right—ranking member Senator Arlen Specter—had only one name on his mind: Marc Rich. Senator Specter’s initial round of questioning focused entirely on Holder’s role in the controversial, last-minute pardon President Clinton granted to the wealthy financier and Democratic fundraiser during his final hours in office. Undoubtedly, Specter was not the only one with questions, as many Americans questioned whether Holder truly represented the change for which the nation had voted. The reemergence of the Marc Rich story during the Holder confirmation hearings once again cast the limelight on the current presidential pardoning structure’s vulnerability to abuse. This article seeks to explore the pardoning process and—consistent with the Obama Administration’s focus on making government more transparent—to propose a solution by which the unchecked power of the President to pardon might be reformed.

Article II, Section 2, Clause 1 of the Constitution grants the President of the United States the “Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” The Framers’ vesting of this broad authority, coupled with Supreme Court decisions affirming the near-limitless nature of this power, has imbued the Office of the President with tremendous discretion to grant federal offenders pardons, conditional pardons, commutations of sentence, remissions of fines, reprieves, and amnesties. While clemency power is by no means unique to the American system of government, the seemingly unchecked nature of this power establishes executive clemency as somewhat of a constitutional anomaly outside the system of checks and balances. Eric Holder’s confirmation hearings revived the public’s memory of President Clinton’s notorious Marc Rich pardon. Other recent controversial pardons include President George H.W. Bush’s pardon of six White House officials involved in the Iran-Contra scandal8 and the commutation of I. Lewis “Scooter” Libby’s sentence by President George W. Bush. Additional criticism of executive clemency has highlighted the declining use of the presidential pardon, despite the Framers’ intent for clemency to serve a vital role in the criminal justice system.

Click to read more

Nov 9

REAL ID: The Devil You Don’t Know

real-idby GEOFFREY D. KRAVITZ

One of the principal recommendations of The 9/11 Commission Report suggested that the federal government implement standards for identification cards to combat terrorism. In 2005, Congress responded by passing the REAL ID Act. The Act requires the Department of Homeland Security (DHS) to create federal standards for identification cards that would be acceptable for certain official uses such as entering federal buildings and nuclear facilities and boarding commercial airplanes. However, the proposed solution’s reliance on an interconnected national database, an unencrypted barcode on each card and biometric identification increases the risk of identity theft, fraud and dissemination of private information without providing strong counterterrorism protection.

This Article argues that, despite a history of American resistance to a national identification system, the REAL ID Act and DHS regulations mandate issuance of unique identification numbers to individuals, numbers that will be accessible through a nationwide network of DMV databases. In essence, this combination creates a de facto national ID card. This Article demonstrates that the government’s failure to adequately secure these new technologies increases the potential for nongovernmental entities, such as hackers and private organizations, to access individuals’ personal information.  To counteract these emerging privacy threats, this Article proposes a combination of technological and legislative solutions aimed at both securing the REAL ID technologies and providing citizens harmed by REAL ID privacy invasions with a cause of action against the government.

Click here to read more

Nov 9

Gentrification’s Third Way: A Analysis of Housing Policy & Gentrification in Providence

housingby MATTHEW JERZYK

This article examines gentrification in the national housing market and, more specifically, in Providence, Rhode Island and the recent development debate in Providence’s poorest neighborhood, Olneyville. While both national and local commentators have disagreed on the benefits and disadvantages of gentrification, this phenomenon has been underway in Olneyville for almost a decade. Recent developments in Olneyville may illustrate how to mitigate the harmful effects of gentrification for urban neighborhoods whose residents are seeking economic rebirth after the devastation of the foreclosure crisis. Housing policies that target the redevelopment of former industrial buildings, in concert with development tax incentives, targeted rent control, and inclusionary zoning initiatives have the  potential to increase the economic, social, and political capital in America’s poorest neighborhoods, reduce absentee landlordism, increase meaningful home-ownership opportunities, diminish displacement of neighborhood residents, and build multiracial and mixed-income neighborhoods.

Click here to read more

Nov 9

Is Everyone Else Doing It? Indiana’s Voter Identification Law in International Perspective

by FREDRIC CHARLES SCHAFFER and TOVA ANDREA WANG

Since the passage of the Help America Vote Act (HAVA) in 2002, requiring people to present identification to vote has become one of the most controversial and divisive issues in election reform. HAVA necessitates, among other things, that members of a small group of people—new voters registering by mail—establish their identity in one of many ways. While about half of the states in the country today apply just that requirement, many states have used the HAVA identification provision to justify additional, more stringent measures. At present, twenty-four states require all voters to present identification when casting a ballot in person.

Most of these states accept a wide range of both photo and non-photo forms of identification. A handful of states allow only photo identification. Four of them—Louisiana, Hawaii, Michigan, and South Dakota—allow eligible voters to cast regular ballots on Election Day even if they fail to bring or do not have the photo identification required. Such voters simply sign affidavits and cast their votes. Only three states absolutely require photo identification: Florida, Georgia, and Indiana. Indiana’s law, passed in 2005, is the most restrictive. Unlike the Florida law, which allows voters to present several different types of photo identification, the Indiana and Georgia laws require that the photo identification be government-issued. But unlike Georgia, Indiana makes it difficult for voters to obtain that identification. For these reasons, opponents believe that the Indiana law will inflict the most widespread disenfranchisement.

Click here to read more

Oct 16

Supporting Advisory Guidelines

by JUDGE NANCY GERTNER

At first glance, advisory sentencing guidelines may seem wholly unrelated to the problem with which this Issue is concerned—the unprecedented and failed experiment in mass incarceration. But the link is stronger than one might expect. While there have always been some mandatory minimum federal sentencing statutes, by the 1980s, the number of such sentencing statutes and their severity exploded, fueled largely by popular pressure to “get tough on crime” and a chorus of criticism about judges. The Federal  Sentencing Guidelines—promulgated to create a more rational punishment  system in the face of political pressure to increase sentences arbitrarily—  exacerbated the problem. Because Guideline sentences were built on top of the mandatory minimum sentences, and because they implemented only two of the purposes of sentencing, retribution and incapacitation, they only drove sentence lengths ever higher. The aim of minimizing judicial disparity in sentencing ensured that whatever their label, the “guidelines” would be mandatory.

When the United States Supreme Court held mandatory guidelines unconstitutional in United States v. Booker1, it arguably paved the way for a different kind of sentencing regime, one that would put the brakes on mass incarceration and allow for more rational sentences. These improvements would occur not merely because advisory guidelines allow for more discretion; more judicial discretion does not necessarily mean that a sentencing system will be more rational, nor more just. What makes a better sentencing system possible is precisely the mix of discretion and structure that the intersection of Booker on the one hand and a two-decade-long system of guideline sentencing on the other, has produced. The post-Booker system is a hybrid, integrating the framework of the existing and still powerful Federal Sentencing Guidelines with the judicial discretion to hand down individualized and proportional sentences. Federal sentencing now reflects more than the exclusive concern for the rote avoidance of disparity in sentencing, and instead includes meaningful consideration of other sentencing purposes, like rehabilitation and minimization of recidivism. The result is not only a system that is more just, but one that is more likely to promote public safety.

Read More (PDF)

Oct 15

Financial Market Failure as a Crisis in the Rule of Law

by TIMOTHY A. CANOVA

Against the background of a close presidential election campaign, the U.S. government responded to the great financial crisis of 2008 with a great financial bailout, a massive federal effort to prop up financial institutions and the economy itself. The crisis in credit and financial markets was the most serious since the collapse of the nation’s banking system in March 1933. A seismic generational shift in values has led to our present crisis. The generation that came of age during the Great Depression and World War II, the so-called Greatest Generation, achieved its most important public policy objectives—converting the economy first to enormous wartime production and then to peacetime rebuilding—in large part because of a financial regulatory regime that kept competition within prescribed limits while allocating credit and capital away from private, speculative activity and into longer-term public investment in physical and social infrastructure.

Read More (PDF)

Oct 15

Cease Fire: A "Win-Win" Strategy on Gun Policy for the Obama Administration

by ALLEN ROSTRON

In the months leading up to Election Day in 2008, Americans faced a steady stream of gloomy economic news. Around the world, stock markets tumbled. Leading companies in the financial sector collapsed or were on the brink of ruin, saved only by massive government bailouts. Most industries experienced significant slowdowns in sales, if not staggering drops. Sales of new homes, for example, plunged from their already low levels, and automakers suffered their worst sales slump since World War II. Shoppers “went into hibernation,” according to the National Retail Federation’s chief economist.

Read More (PDF)

Oct 15

1 Comment

Heller High Water? The Future of Originalism

supcoby JAMAL GREENE

Has originalism won? It’s easy to think so, judging from some of the reaction to the Supreme Court’s recent decision in District of Columbia v. Heller. The Heller Court held that the District of Columbia could neither ban possession of handguns nor require that all other firearms be either unloaded and disassembled or guarded by a trigger lock. In finding for the first time in the Court’s history that a gun control law violated the Second Amendment, Justice Scalia’s opinion for the 5-4 majority appeared to be a sterling exemplar of originalism, the method of constitutional interpretation that he has helped to popularize. More surprising to most observers, the dissenting opinion of Justice Stevens also seemed to be in the originalist tradition.  Hence the claim advanced by some in the decision’s wake that “we are all originalists now.”

If that claim is true, it is profoundly important to the future of constitutional law. Originalists believe that judges generally should prioritize the original understanding of constitutional provisions over contemporary understandings that avail themselves of social and intellectual progress. Since this is not how constitutional law has been made for much of our history, a serious commitment by the Supreme Court to originalism would destabilize some of our most familiar and cherished political traditions. If the claim is not true, then constitutional lawyers, particularly progressives, must take care to separate the rhetoric of originalists from the impact of originalism on actual constitutional cases.

Read More (PDF)

Oct 15

Reducing Mass Incarceration: Implications of the Iron Law of Prison Populations

by TODD R. CLEAR and JAMES AUSTIN

Beginning in the 1970s, the United States embarked on a three-decade long shift in its penal policies. In these years, state and federal governments tripled the percentage of convicted felons sentenced to confinement and doubled the length of their sentences. As a consequence of these changes, punishment in the United States has become an outlier, not only among prevailing practices in the Western world, but also in comparison to the United States’ own long-standing practices. United States imprisonment rates are now almost five times higher than the historical norm prevailing throughout most of the twentieth century, and they are three to five times higher than in other Western democracies.

Read More (PDF)

Oct 15

Integrative Solutions to Interrelated Issues: A Multidisciplinary Look Behind the Cycle of Incarceration

by NKECHI TAIFA and CATHERINE BEANE

Over two million people are currently incarcerated in U.S. prisons and jails. This number is not only staggering but unprecedented—both in the United States and among industrialized nations across the world. Over the past thirty years, policymakers have increasingly shifted toward incarceration as the primary strategy for addressing crime in America, despite the fiscal demands this places on limited public resources, and despite growing evidence that such massive incarceration has resulted in diminished public safety returns. This “lock ’em up,” “tough on crime” approach has evolved in a broader social context permeated by poverty, rampant unemployment, poor housing, inadequate education, harmful health outcomes, and diminished life opportunities—interrelated social issues that fuel a cycle of incarceration, particularly among the poor and communities of color. Skewed policies that emphasize punishment over prevention and devalue investments in people exacerbate the devastating impact of incarceration on individuals and communities. And because all too often one’s life opportunities after imprisonment are abysmally limited, recidivism becomes inevitable.

The most effective way to confront these root causes of crime and stop the cycle of incarceration before it begins is through an integrative approach to justice—a multidisciplinary approach that recognizes the relationship among inadequately addressed social issues and crime, and that uses evidence-
based strategies to respond to those issues. Criminal conduct often stems from the complex interaction of risk factors that implicate the concerns of multiple academic disciplines and government  institutions. Just as the factors that contribute to crime are interrelated, so too are the solutions:
Crime cannot be effectively prevented by an isolated policy change or a singularly-focused intervention devoid of an understanding of the broader context. An integrative approach to justice reform implicitly recognizes this complexity and calls for a comprehensive criminal justice strategy that addresses the underlying, interrelated social issues that fuel the cycle of incarceration.

Page 1 of 712345...Last »