ACS https://www.acslaw.org American Constitution Society Tue, 12 Mar 2024 17:40:03 +0000 en-US hourly 1 https://wordpress.org/?v=6.4.1 https://www.acslaw.org/wp-content/uploads/2018/09/cropped-acs-square-favicon-logo-2-32x32.png ACS https://www.acslaw.org 32 32 Law and the Movement for Reparations https://www.acslaw.org/expertforum/law-and-the-movement-for-reparations/ Tue, 12 Mar 2024 16:28:17 +0000 https://www.acslaw.org/?post_type=acsblog&p=114462 This article first appeared in print in Reparations Daily(ish) Volume 102 When you think about slavery, Jim Crow, and other forms of anti-Black oppression, a few familiar villains probably come to mind—you might think of brutal overseers whipping Black people on plantations, cruel auctioneers ripping families apart, or sadistic police setting dogs on Black protesters. […]

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This article first appeared in print in Reparations Daily(ish) Volume 102

When you think about slavery, Jim Crow, and other forms of anti-Black oppression, a few familiar villains probably come to mind—you might think of brutal overseers whipping Black people on plantations, cruel auctioneers ripping families apart, or sadistic police setting dogs on Black protesters. You probably don’t immediately think about the thousands of lawyers who worked behind the scenes to normalize these atrocities, including lawmakers, judges, prosecutors, and private attorneys.

Yet, from the Constitution, which initially counted enslaved people as three-fifths of a person, to the Supreme Court’s doctrine of “separate but equal,” to contracts legitimizing the sale of human beings, the law and lawyers have played a central role in the dehumanization of Black people. Because of this history, lawyers and the law have a unique role to play in the struggle for racial justice and repair.

In New York, the movement to address anti-Black oppression led to the abolition of slavery in 1827 in the state, but that laudable effort did not disentangle New York from the exploitation of Black bodies. Until the Civil War, New York-based banks like JP Morgan accepted enslaved people as collateral for loans, and insurance firms like New York Life offered policies insuring enslavers for loss of enslaved “property.” Locally, Black communities were devastated by anti-Black race riots in 1863, 1900, and 1919—mass atrocities that went largely unprosecuted. And practices like redlining continued to diminish the value of Black property and Black life well into the 20th century.

Today, as a result of these and similar accumulated injustices, the median white New York household has nearly 15 times as much wealth as the median Black household, a wealth gap 50% greater than the national average. And Black New Yorkers continue to face worse life outcomes in almost every category, from education, to health, to the criminal legal system.

To address the magnitude of this harm, the movement for reparations draws upon familiar legal principles. Just as plaintiffs who have suffered harms like battery, assault, false imprisonment, conversion, and unjust enrichment can bring civil claims to have their harms acknowledged and be made whole, reparations processes offer an opportunity to assess and respond to collective harms and injustices. And while a verdict or money judgment, or reparations process can never fully compensate for past harm, it is a meaningful step toward justice.

As the reparations process begins in New York, the first step will be establishing a comprehensive and accurate record of what occurred. Through historical documents, statistical evidence, and witness testimony, reparations commissions can reconstruct a comprehensive understanding of the past—and how it is connected to the present. One promising recent example of this work is the mammoth report of the California Reparations Task Force, which details the history of anti-Black oppression in that state and its ongoing ramifications for housing, education, political representation, the environment and other fields.

The second, and often more contentious work of reparations is to design remedies, but here as well, reference to “traditional” legal principles is informative. Civil law operates on the principle of placing plaintiffs in the position they would have been in if the harm had not occurred. While we know that this is functionally impossible or very difficult, it is a useful north star. Reparations activists suggest that we should look to see what it would take to achieve realized equality in our society by leveling the racial wealth gap and eliminating racial inequities in health, housing, education and other life outcomes.

History offers several models for direct payments to the victims of past harms and their descendants, including German payments to survivors of the Holocaust, payments authorized by Congress for victims of the interment of Japanese Americans during World War II, scholarships designated for survivors of the Rosewood massacre in Florida, and housing assistance to survivors of housing discrimination in Evanston, Illinois. While it is likely that only the federal government is sufficiently resourced to meet the total cost of reparations for slavery, state and local efforts play a critical role in building momentum and creating the factual record necessary for a national undertaking.

As in the past, lawyers may present some of the biggest obstacles to justice. Conservative legal operatives like Edward Blum, a key figure in the push to dismantle affirmative action, DEI, and voting rights, has signaled his opposition to reparations efforts and sent threatening letters to the Evanston commission in an attempt to derail that effort.

Thankfully, so far, federal courts have refused to strike down reparations efforts, describing the government’s interest in remedying past discrimination by state actors as “unquestionably” compelling, particularly when those acts are well documented and the proposed remedies for those acts are narrowly tailored to address the harm committed. Now, as in the past, it is crucial to develop the robust factual record that will be necessary to support bold action to eliminate racial disparities.

Despite opposition from the likes of Blum, the reparations movement continues to grow. In New York, lawyers in particular, have an opportunity to weigh in on the right side of history, reckon with the past's harms, and help chart a brighter future.

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Taonga Leslie is the Director of Policy and Program for Racial Justice at ACS.

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Trump v. Anderson Presidential Ballot Case: SCOTUS Must Do Its Job to Protect the United States https://www.acslaw.org/expertforum/trump-v-anderson-presidential-ballot-case-scotus-must-do-its-job-to-protect-the-united-states/ Fri, 23 Feb 2024 17:56:12 +0000 https://www.acslaw.org/?post_type=acsblog&p=114712 The Fourteenth Amendment, Section Three states, “No person shall be a [federal or state official] who, having previously taken an oath … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against [the government].” Given a textualist read and borrowing from the ordinary rules of statutory interpretation, the plain […]

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The Fourteenth Amendment, Section Three states, “No person shall be a [federal or state official] who, having previously taken an oath … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against [the government].” Given a textualist read and borrowing from the ordinary rules of statutory interpretation, the plain meaning seems clear.

At the time of its ratification back in 1868, the United States was emerging from a deadly Civil War which killed 620,000 Americans. Back then, everyone knew who the Amendment covered: former Confederates. They were leaders like former Confederate President Jefferson Davis and General Robert E. Lee to name the obvious. It included those confederate soldiers and others who supported the Confederacy in other ways but who previously held sworn federal or state governmental office. Union politicians did not want Confederates taking over what was admittedly a fragile nation. Fast-forward one hundred and fifty-six years, and history seems to repeat itself.

Most everyone knows who participated in the January 6th insurrection aimed at overturning the 2020 election. Citizens watched the attack on the Capital on television with their own eyes. Hours upon hours of the uprising was captured on video. Senators, Congressmembers, staff, and police became direct victims of the violence. Over a thousand people have been charged, convicted, or sentenced to incarceration for what happened that day.

Many of the direct victims have spoken publicly against the events and those involved, including as to former President Trump’s involvement. Hundreds of the criminal defendants have gone on record to blame the former President for inciting them to participate. This includes the ‘Proud Boys,’ a known far-right, neo-fascist militant organization that promotes and engages in political violence, who the former President asked to “stand back and stand by,” during the 2020 presidential debates.

The former President is a defendant in several criminal prosecutions, two of which are tied to the fateful events of January 6th. Within a week of the attack, the former President had been accused of “responsibility” for the insurrection and that his “rhetoric crossed a line” by former political loyalists. Within an hour of the conclusion of the former President ’s related impeachment trial, Congressional leadership stated on the record, “Former President Trump’s actions preceding the riot were a disgraceful, disgraceful dereliction of duty . . . There’s no question, none, that President Trump is practically and morally responsible for provoking the events of the day.”

Not only does this put into question the former President’s character and fitness to be President as well as his willingness to uphold the Constitution, it also gives credence to the criminal charges handed down by grand juries against him. The former President is now alleged to be a felon who, among other things, attempted to invalidate the votes cast by American citizens as is their constitutional right, and who looks more like a criminal than a qualified Presidential candidate. The reasons for keeping the former President off the 2024 ballot are more than compelling; they seem obvious.

Shockingly, despite all this, there is disagreement in the legal community as to whether this should disqualify the former President, even temporarily, from being placed on any primary ballot or the 2024 Presidential election ballot. For those opposing application of Section Three to the former President, the argument is technical with little to no explanation of how an alleged felon who attempted to violate the constitutional rights of our citizens should be in any public office let alone the office of the Presidency.

The disagreement focuses on: whether Section Three is enforceable without congressional implementing legislation; whether the office of the President is covered by Section Three; whether an insurrection occurred; what conduct qualifies as engaging in an insurrection; and, what due process is required under Section Three, if any. The amicus brief of Professor Mark Graber submitted to the Colorado Supreme Court is instructive as to these issues as it provides the historical and legal framework supporting application of Section Three to the former President, and takes head on academia that try to exclude the application of Section Three to the former President. The four opinions in the Colorado Supreme Court decision and the ruling of the Secretary of State of Maine discuss these issues addressed by the Graber amicus brief. Non-lawyer historians have also filed an amicus brief to aid the Court in understanding the historical context of the Amendment in support of its application to the former President.

Still, at the recent oral arguments before the Supreme Court in Trump v. Anderson, the Court seemed fixated on the idea that the Colorado decision to remove the Former President from its ballot would in effect bind the other forty-nine states. This seemed to miss the mark as it is the former President’s conduct detailed above which had that effect. The Court seemed more interested in finding a reason not to exercise its responsibility to interpret and apply the law rather than to give effect to the purpose and plain language of the Amendment.

Further, besides the factual record and the historical record, there are other compelling reasons to believe the former President should not be allowed to be on the ballot of any state in 2024, and which would comport with the plain meaning of Section Three, that are receiving little to no attention in the debate and the oral argument before the Court.

First, like the political environment of 1868, what is at stake is our democracy. What is not at stake is the former President’s “life and limb.” It is not at stake until his criminal cases go to trial, whenever that might be. What is at stake is whether the Court will let an alleged, potentially convicted, felon be President of the United States, a position that would let him subvert the rule of law. Nowhere in the Amendment is there language limiting its application to the people and events of the 1860s, exempting the office of the President, as some argue. If it did, the amendment would say so.

Second, the former President deserves his day in court to prove his innocence as to whether his acts criminally contributed to the events of January 6th. However, under the self-executing language of Section Three, the former President should not be on the ballot of any state unless by an act of Congress removing the disqualification as stated in Section Three.

Third, justice moves too slowly to both afford a criminal defendant due process and still achieve resolution before the election, which is to the country’s benefit, in this particular instance. That pace could result in a criminally charged but not yet convicted former President returning to the highest office to the detriment of the country. The Supreme Court is a court of equity and it should act accordingly.

The language of Section Three protects the country from what the “Second Founders” wanted to protect us from: those who attack the government being in government. If “no person is above the law” means something, the Supreme Court should affirm the Colorado Supreme Court and remove the former President from all ballots.

Colorado is not to blame here; the former President’s conduct is. If the Court finds differently, this would let a federal officeholder potentially avoid both federal and state prosecution. This would hardly seem like what the “Framers of the Second Founding” would have wanted when drafting an amendment to protect the country from those who participate in or are involved in a violent uprising against the government. The state courts have done their job; it’s time for the Supreme Court justices to do theirs.

Jim Saranteas is a practicing attorney with over twenty years of experience at the trial and appellate levels in civil litigation. His accomplishments include successful arguments and decisions before, among others, the Illinois Supreme Court. In 2012, the Loyola University Chicago School of Law’s Board of Governors chose him for its prestigious St. Bellarmine Award in recognition for his distinguished contributions to the legal community. He was both an adjunct professor and moot court coach in appellate advocacy for Loyola Law. This year, Saranteas is assisting Duke Law’s Moot Court Board as a volunteer appellate advocacy coach. Saranteas received his J.D. from the Loyola University Chicago School of Law, and his B.A. in Economics & Business Administration from Knox College.

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Bad Neighbors: How Big Polluters and the Supreme Court Threaten Our Air https://www.acslaw.org/expertforum/bad-neighbors-how-big-polluters-and-the-supreme-court-threaten-our-air/ Thu, 15 Feb 2024 17:30:00 +0000 https://www.acslaw.org/?post_type=acsblog&p=114431 In an era where the phrase "unprecedented times" has become all too common, another remarkable chapter is set to unfold in our highest court. On February 21, the Supreme Court is poised to bypass traditional procedure, hearing a case from the shadow docket before the D.C. Circuit reaches the merits—a move that sidesteps the D.C. […]

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In an era where the phrase "unprecedented times" has become all too common, another remarkable chapter is set to unfold in our highest court. On February 21, the Supreme Court is poised to bypass traditional procedure, hearing a case from the shadow docket before the D.C. Circuit reaches the merits—a move that sidesteps the D.C. Circuit and ventures away from standard court review—at the request of polluters who don’t want to reduce their smog-causing pollution that blows across state lines.

The result could leave millions unprotected from harmful smog pollution while threatening the balance of power within our judicial system.

Air Pollution Makes for a Bad Neighbor

To understand the significance of this case, we must begin with wind. Pollution from sources including fossil fuel power plants and factories doesn’t stop at state lines, but instead can travel hundreds of miles, and create serious air quality problems far from the original offender. Because of prevailing wind patterns in North America, pollution from uncontrolled and undercontrolled sources in places like Texas and the Ohio River Valley can cause air quality problems far away in the Upper Midwest, the Mid-Atlantic, and the Northeast, even if those downwind areas have taken steps to strictly control their own polluters.

This is not a trivial matter: the air pollution from upwind states is so severe, it can make it nearly impossible for downwind states to attain and maintain “EPA’s health-based air quality standard for ground-level ozone (or “smog”), known as the 2015 Ozone National Ambient Air Quality Standards (NAAQS),” presenting a thorny problem of interstate equity.

Fortunately, the Clean Air Act has a solution to this: every state is not only required to develop and submit plans to EPA detailing how they will attain and maintain air quality standards such as the Ozone NAAQS within their borders, but is also required to develop plans to prevent their pollution from hindering other states from attaining and maintaining air quality standards. However, the unfortunate reality is that states often fall down on that second obligation; in fact, 23 states either submitted “do-nothing” plans to address their cross-state ozone pollution or didn’t bother submitting plans at all.

Downwind states faced deadlines in 2023 and 2026 for attaining the Ozone NAAQS, and so EPA stepped in with the Good Neighbor Plan, designed to ensure states are being good neighbors by reducing the pollution from coal plants and other industry that contributes significantly towards downwind smog problems in other states. The rule, finalized in March 2023, updates a system that has been in place in the eastern U.S. for over a decade that has successfully and cost-effectively cleaned up some of our worst sources of air pollution.

The 2023 Good Neighbor Plan

In many ways, the Good Neighbor Plan is just the latest in a long line of ozone transport rules starting with the 1998 NOx SIP Call, the 2011 Cross State Air Pollution Rule, the 2016 Cross State Air Pollution Update, and the 2020 Revised Cross State Air Pollution Update.  These rules have been court-validated, including by the DC Circuit in 2023, and the Supreme Court in 2014.

Like those rules, the Good Neighbor Plan functions by determining first which areas across the country are failing or having trouble maintaining national ozone standards and what states are contributing pollution to those areas, and then setting two types of emission reductions for those states that are “linked” to the downwind ozone problem spots. In the Good Neighbor Plan, those reductions take the form of (1) a set of allowances for ozone precursor pollution from power plants, and/or (2) a set of emission limits for other large industrial sources of ozone precursor pollution, like incinerators, pulp mills, pipelines, and glass factories. These requirements phase in over several years, with the Good Neighbor Plan becoming fully implemented in 2026.

The health benefits are monumental. EPA projects that when fully implemented in the 23 states it covers, the rule will:

  • prevent approximately 1,300 premature deaths,
  • save over 2,300 visits to hospitals and emergency rooms,
  • cut asthma symptoms by 1.3 million cases,
  • avoid 430,000 school absence days, and
  • prevent 25,000 lost work days.

The rule is also projected to bring $13 billion in annual net benefits for decades to come. But despite these clear advantages and the Clean Air Act’s mandate that states address air pollution they send downwind, several states and polluter industry groups have stymied implementation of the rule by filing challenges to EPA’s authority to address ozone transport in multiple regional Circuit courts. These cases have delayed critical health and environmental protections, but don’t reach the merits of the Good Neighbor Plan itself. As those cases reach the merits, some states could be restored to the Good Neighbor Plan, if EPA’s authority to address ozone transport where the states have failed to is vindicated.

Nonetheless, today the Good Neighbor Plan is being implemented in Illinois, Indiana, Maryland, Michigan, New Jersey, New York, Ohio, Pennsylvania, Virginia, and Wisconsin, and California is subject to requirements that are scheduled to take effect in the 2026 ozone season. In January, EPA also proposed adding five new states to the rule, expanding it to include Arizona, Iowa, Kansas, New Mexico and Tennessee.

Even with the rule only partially implemented, the public is benefiting. Harmful ozone-season NOx pollution (a key smog precursor pollutant) has dropped 18 percent in the 10 states that implemented the program in 2023. And under the entire collection of cross-state ozone transport programs, ozone season NOx emissions have dropped over 50 percent since 2015.

But many communities are still waiting to experience the full public health and economic benefits of the rule. Pursuant to temporary court orders, EPA is currently not implementing the rule in 12 states: Alabama, Arkansas, Kentucky, Louisiana, Minnesota, Mississippi, Missouri, Nevada, Oklahoma, Texas, Utah, and West Virginia. What’s more, the states who are experiencing the benefits of the Good Neighbor Plan could soon see these improvements slip away.

Understanding Legal Challenges to the Good Neighbor Plan

Polluter states and industry groups are challenging the Good Neighbor Plan before the D.C. Circuit Court of Appeals.  As unfortunate as those challenges may be, procedurally, that’s normal. And also normal is the fact that the D.C. Circuit rejected those challengers’ requests that the Good Neighbor Plan be stayed (as noted above, ozone transport rules like the Good Neighbor Plan have been repeatedly validated by the courts) and directed the parties to move forward with briefing on the merits.

But what’s not normal is that last fall those same challengers–including the National Mining Association, American Forest & Paper Association, Midwest Ozone Group, Enbridge, Interstate Natural Gas Association of America, and American Petroleum Institute and the attorneys general of Indiana, Ohio, and West Virginia–filed applications on the Supreme Court’s shadow docket, seeking to go around the D.C. Circuit’s order rejecting a stay.  Less normal still is that the Supreme Court requested briefing and argument from the parties. As a result, the Supreme Court could be deciding the future of the Good Neighbor Plan despite the D.C. Circuit never having a chance to review merits briefs, hear oral argument, or issue a decision.  Effectively, polluter states and industry have tried to jump the queue right to the Supreme Court, sidelining the D.C. Circuit in the process, and the Supreme Court appears to be going along with it.

That’s not how court review is supposed to work.

Congress directed that national Clean Air Act rules like the Good Neighbor Plan be reviewed first of all in the D.C. Circuit, enabling any controversy to be fully developed with briefs, argument, and a written opinion, before a case might arrive on the Supreme Court’s docket. By upending this normal procedure, the D.C. Circuit is stuck in limbo, the Supreme Court is deprived of a full record and fully developed arguments, and the public is left wondering whether critical air quality protections will be stripped away. Given that the Supreme Court in 2014 upheld a prior ozone transport rule, the 2024 Supreme Court’s willingness to short-circuit the process here with the Good Neighbor Plan is troubling.

While legal and environmental experts await the Supreme Court’s decision, it is children, families, and vulnerable communities that have the most to lose. For people in states subject to harmful smog from upwind polluters, this rule is their primary defense and their greatest hope of addressing cross-state air pollution.

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Headshot of Zachary FabishZachary Fabish is a senior attorney with the Sierra Club's Environmental Law Program, where he focuses on power sector litigation and EPA rulemakings.

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Judges and Democracy https://www.acslaw.org/inbrief/judges-and-democracy/ Fri, 26 Jan 2024 15:07:52 +0000 https://www.acslaw.org/?post_type=inbrief&p=114092 Finally, the Louisiana legislature has complied with the courts and redrawn its legislative maps to include two majority-Black congressional districts. This outcome in favor of representative democracy is a timely reminder of why courts matter come election time. It has now been a few years since all states have redrawn their electoral maps based on […]

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Finally, the Louisiana legislature has complied with the courts and redrawn its legislative maps to include two majority-Black congressional districts. This outcome in favor of representative democracy is a timely reminder of why courts matter come election time.

It has now been a few years since all states have redrawn their electoral maps based on the results of the 2020 census and with the redistricting process came a wave of litigation challenging those maps. Louisiana was one of many states who fought in court to defend maps against claims of racial gerrymandering.  In Robinson v. Landry, a group of Louisiana voters and members of the civil rights coalition successfully claimed that the state’s maps violated Section 2 of the Voting Rights Act.  This litigation paralleled the claims and facts at issue in Merrill v. Milligan, where Alabama’s legislature was found to have racially gerrymandered their congressional maps to include only one majority-Black district. In both states, conservative legislatures drew congressional maps that intentionally diluted the influence of Black voters. Louisiana is nearly a third Black, and yet the original electoral maps contained only one majority-Black district out of six total. In 2022, the Supreme Court took up Merrill and put the Louisiana case on hold pending the outcome. Last June, the Supreme Court handed down its decision in Merrill, ruling that Alabama’s congressional map violated the Voting Rights Act and requiring the state to redraw it. The Court subsequently released the Louisiana case, with instructions for the lower court to apply the holding in Merrill. That was last June. Fast forward seven months and the Louisiana legislature finally gave in to the legal reality of their situation. As a result, Louisiana voters will go to the polls this November with a greater opportunity to elect congressional representatives that reflect the values and priorities of their communities.

There are three takeaways from this that I want to highlight. One, the power of federal courts that are not the Supreme Court. While the outcome in Robinson v. Landry was influenced by the Supreme Court, it was never actually heard by the Court. And, even after Merrill v. Milligan was decided, the Louisiana legislature sought to defy the holding. The district and circuit courts spent the last several months denying the state’s attempts to avoid redrawing its maps in compliance with Section 2 of the Voting Rights Act.

This leads to the second point, and that is the importance of filling judicial vacancies in red states. I've remarked on this a lot recently, in response to the data compiled and published by Professor Mark Lemley. Increasingly, presidents are focusing their attention on judicial vacancies in states that align with their own political party. This is particularly evident with the current and previous administrations. The Trump administration prioritized red states, and the Biden administration is now prioritizing blue states. In the end, we all lose.

The President does the country a disservice when they prioritize only certain states, contributing to entire district courts that are dominated by a particular ideology. The redistricting outcome in Louisiana is a big deal for representative democracy, and the district court judge who heard the case and initially ruled that the original map was an illegal gerrymander was an Obama appointee. We need judges who are committed to the rule of law, to vindicating our fundamental freedoms, and to safeguarding democracy across the country, not relegated to only certain states.

This is why we at ACS are urging the White House and the Senate to do more to fill red state vacancies. We cannot afford to solidify two systems of justice in this country, with red courts and blue courts issuing conflicting decisions and teeing up the U.S. Supreme Court’s conservative supermajority to reshape the country as it sees fit. The majority of district court vacancies right now are in red states. We cannot afford for the Biden administration to write those vacancies off and punt them to a future administration. It is not too late for the White House and Senate to work together to fill all red state vacancies this year.

The third takeaway is how profoundly courts impact elections. We usually say this in the weeks just before or after an election, when judges are ruling on cases related to election administration, but it applies long before Election Day. Redistricting absolutely impacts elections. While Louisiana is now being brought into compliance with the Voting Rights Act, the Supreme Court enabled the state to use racially gerrymandered maps for the 2022 election cycle when it put the case on hold, freezing the maps as they were – gerrymandered. With the House of Representatives so closely divided between the two political parties, the redrawing of one state’s congressional maps can impact which party controls Congress. The fight to secure the promise of a multiracial democracy in this country goes through the courthouse. If you care about fair elections and representative democracy, you have to care about the courts.

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Do Not Give Ground on the Death Penalty https://www.acslaw.org/inbrief/do-not-give-ground-on-the-death-penalty/ Thu, 18 Jan 2024 20:29:13 +0000 https://www.acslaw.org/?post_type=inbrief&p=113892 President Biden is the first publicly anti-death penalty president to be elected in this country. That is not a small achievement. Even as this country made progress in abolishing the death penalty in previous decades, with individual states choosing to repeal it and federal courts imposing moratoriums on the federal death penalty for stretches of […]

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President Biden is the first publicly anti-death penalty president to be elected in this country. That is not a small achievement. Even as this country made progress in abolishing the death penalty in previous decades, with individual states choosing to repeal it and federal courts imposing moratoriums on the federal death penalty for stretches of time, the country consistently elected presidents who publicly supported the federal government knowingly and intentionally executing people. President Biden’s election was an enormous symbolic milestone, but the impact of that milestone is suddenly in question.

Last week, federal prosecutors announced that they would be pursuing the death penalty in a criminal case—the first new capital prosecution since President Biden took office. Early in the administration, the U.S. Department of Justice imposed a moratorium on federal executions. While we applauded the announcement at the time, we also raised concern from the get-go that a moratorium could be lifted by a future administration that could immediately undertake another execution spree like that carried out by the Trump administration. We also cautioned that a moratorium on executions does not prevent new federal death sentences from being imposed, and that’s the situation now. If Attorney General Garland has sufficient concerns to impose a moratorium on executions, what sense does it make for his DOJ to pursue a prosecution that will only add to the federal death row’s population? Moreover, if DOJ is willing to pursue a new federal death sentence, what’s to say they will not pursue more?

Opposition to the death penalty is not about the details of any one case, but the values of the government applying it. No matter the facts of any given case, our leaders either believe that the criminal legal system’s use of state-sanctioned killings is wrong, or they don’t. Even in the abstract, the death penalty is unjust and undemocratic. It is exponentially more so when you factor in the realities of the American death penalty and the racism that defines nearly every phase of a capital prosecution and sentence. By pursuing the death penalty in a single case, again regardless of the facts of that case, the federal government validates state-sanctioned killings as a policy and a practice.

President Biden cannot single handedly abolish the federal death penalty. But he can have a meaningful symbolic impact by overseeing an administration that refuses to legitimize the death penalty and that maintains a permanent opposition to it. It takes a single case to undermine the power of that symbolism and the progress made by the administration’s opposition until now. This is why we are deeply disappointed to see the Department of Justice pursuing a new death sentence.

As a country, we are moving slowly but surely towards abolition. Eleven of the 23 states that have abolished the death penalty have done so in the past 16 years. This includes states with Republican legislatures and/or governors. The Biden administration exemplified this momentum, sending a message to the states and to other countries that the United States is moving in the right direction. The pursuit of the death penalty in a single case does not wipe out the impact of this country electing the first openly anti-death penalty president in its history, but it surely diminishes that impact.

President Biden still has time to reinforce his opposition to the death penalty and make it a legacy of his presidency - by using his constitutional authority to commute federal death row. The Constitution explicitly grants the President the authority to do this, without any role for Congress. Now more than ever, it is important for President Biden to reaffirm his commitment to death penalty abolition and to move this country decisively in that direction, without exceptions or caveats.

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