In Abbott v. Perez, a 5-to-4 conservative majority on the Supreme Court decided that “the district court disregarded the presumption of legislative good faith and improperly reversed the burden of proof when it required the state to show a lack of discriminatory intent in adopting new districting plans; one of the challenged state house districts is an impermissible racial gerrymander.”  Justice Samuel Alito (joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Neil Gorsuch) found that past discrimination by one set of lawmakers, is not evidence of new discrimination by a different lawmaking body. And so it’s up to the voters challenging maps that burden the rights of people of color to make the case that the new legislature intended to do just that. Alito calls this “the presumption of legislative good faith,” under which the government is given the benefit of the doubt and not required to “purge the bad intent of its predecessor.” “Past discrimination cannot, in the manner of original sin, condemn governmental action that is not itself unlawful,” Alito writes.  The justices threw out almost all of a ruling by a three-judge federal district court that would have invalidated the maps, agreeing with the lower court only that one state legislative district was a racial gerrymander. Today’s ruling means that elections this year will likely go forward using the existing maps.

This decision is a major blow for voting rights.  For “[n]o right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined. Our Constitution leaves no room for classification of people in a way that unnecessarily abridges this right.”  Wesberry v. Sanders  376 U.S. 1, 17–18 (1964).  As President Lyndon Johnson said in his message that accompanied his request that Congress enact a voting rights bill, “In the world, America stands for-and works for-the right of all men to govern themselves through free, uninhibited elections. An ink bottle broken against an American Embassy, a fire set in an American library, an insult committed against the American flag, anywhere in the world, does far less injury to our country and our cause than the discriminatory denial of any American citizen at home to vote on the basis of race or color.”  Philip A. Klinkner & Rogers M. Smith, The Unsteady March: The Rise and Decline of Racial Equality in America 277 (1999)  To ensure that our citizens enjoy this precious right, the United States Constitution sets forth fundamental principles governing the franchise: equal suffrage based on race (15th Amend.) and poll tax prohibition (24th Amend.).
 
In a forceful closing paragraph Justice Sotomayor protested that the ruling “does great damage to” the right “to equal participation in our political processes.” “Not because it denies the existence of that right, but because it refuses its enforcement. The Court intervenes when no intervention is authorized and blinds itself to the overwhelming factual record below. It does all of this to allow Texas to use electoral maps that, in design and effect, burden the rights of minority voters.”

Gerrymandering is an example of politicians, whether congressional or judicial, rigging the system.  To gerrymander is to manipulate the boundaries of an election district so as to advantage one party. Gerrymandering is usually done to benefit the party in power.  Like slavery, gerrymandering is an American original sin. The word was coined as a way of criticizing Governor Gerry’s redrawing of the Massachusetts state senate election districts in 1812.  Gerrymandering is in some states to the benefit of the Democrats and in others to the Republicans.  Two principal tactics are used in gerrymandering: "cracking" (i.e. diluting the voting power of the opposing party's supporters across many districts) and "packing" (concentrating the opposing party's voting power in one district to reduce their voting power in other districts). The third tactic, shown in the top-left diagram in the diagrams to the right, is that of homogenization of all districts. Gerrymandering ends competitive elections!
Gerrymandering is effective because of the wasted vote effect. Wasted votes are votes that did not contribute to electing a candidate, either because they were in excess of the bare minimum needed for victory or because the candidate lost. By moving geographic boundaries, the incumbent party packs opposition voters into a few districts they will already win, wasting the extra votes. Other districts are more tightly constructed with the opposition party allowed a bare minority count, thereby wasting all the minority votes for the losing candidate. These districts constitute the majority of districts and are drawn to produce a result favoring the incumbent party.

In the era of mass incarceration, there has been discussion of prison gerrymandering.  Prison-based gerrymandering has occurred in places such as New York when prisoners were counted as residents of a particular district, increasing the district's population with non-voters when assigning political apportionment. This phenomenon violates the principle of one person, one vote (under the Equal Protection Clause of the Constitution, legislative voting districts must be the same in population size. The idea behind the rule is that one person’s voting power ought to be roughly equivalent to another person’s within the state.) announced in Baker v. Carr and culminating in 1964 with the case of Reynolds v. Sims because, although many prisoners come from (and return to) urban communities, they are counted as "residents" of the rural districts that contain large prisons, thereby artificially inflating the political representation in districts with prisons at the expense of voters in all other districts without prisons.  Others contend that prisoners should not be counted as residents of their original districts when they do not reside there and are not legally eligible to vote. That is why the decision by the Supreme Court in Husted v. A. Philip Randolph Institute is politics clothed in law.  In that case the Court said if you fail to cast a ballot, you can be removed from the voter rolls and denied your fundamental right to vote. This logic ignores Congress’s own statement when passing the voting rights act that people should not be removed “due to their failure to respond to a mailing.”   This allows convicted felons who cannot vote will be removed from voter rolls even after their sentence is over and they have supposedly paid back their debt to society.  To be clear, this system is aimed at the minority vote: a Reuters study found others in predominantly African American neighborhoods were purged at more than twice the rate of voters in predominantly white neighborhoods. 

How gerrymandering is ruining democracy:

1. Brings Out Partisan Extremes  The most detrimental effect gerrymandering has on our political system is that it leads inevitably to polarization. Manipulating and stretching congressional districts pushes incumbents to the extremes of the political spectrum. Republicans have become more conservative and Democrats more liberal. Why does this happen? If an incumbent’s only fear is a primary challenge, his or her focus will be to maintain ideological purity, rather than pursue legislative pragmatism.  When elected officials pay more attention to the primary, rather than the general election, they become more extreme and this naturally leads to gridlock. Consequently,  the least productive Congresses in history have come in the past decade. According to The Pew Research Center the 113th Congress (2013-2014) was almost the least productive Congress in history, second only to the 112th Congress (2011-2012).  America need reformers, not ideologues - statesmen, not panderers.
2. Votes Don’t Matter   Skewed district lines consolidates the power of the party in control and leaves voters with less accountable elected officials, with less pressure to solve the problems facing all voters.
   
3. Tears Apart Communities and gives power to too few voters: Gerrymandering is to cheat designated groups in the power of their vote. One form of gerrymandering is to split a group, say a predominantly black neighborhood, between two districts, thereby reducing their block vote into a small minority in each district.  Assume there is a disparity in geographical size of congressional districts. Also assume those large geographic districts are located in the most densely populated areas of the state. Usually such districts are urban and “packed” with Democratic voters. This is done to splinter the vote, ensuring the minor party (today the Democratic Party) a “safe seat” while making it nearly impossible for another Democrat to win in adjoining districts in which Democratic voters join with a large number of Republicans.  This is called “cracking.”  Adjoining districts become Republican strongholds which has led to an over representation of rural populations  – even though majority of voters live in urban areas!
   

For instance, State legislatures have used gerrymandering along racial lines both to decrease and increase minority representation in state governments and congressional delegations. In the state of Ohio, a conversation between Republican officials was recorded that demonstrated that redistricting was being done to aid their political candidates. Furthermore, the discussions assessed race of voters as a factor in redistricting, because African-Americans had backed Democratic candidates. Republicans apparently removed approximately 13,000 African American voters from the district of Jim Raussen, a Republican candidate for the House of Representatives, in an attempt to tip the scales in what was once a competitive district for Democratic candidates.

The problem is easy to solve by taking the drawing of district boundaries out of the hands of self-interested politicians. In about twenty states, the legislatures have delegated some authority over the drawing of district lines to redistricting commissions. Some of these, however, are set up so as to still give the majority party final control. Six states have delegated the authority over state district borders to nonpartisan or bipartisan commissions. The authority over both state and congressional district borders has been delegated to bipartisan or nonpartisan commissions in only seven (or eight) states – Arizona, California, Hawaii, Iowa, Idaho, Montana, New Jersey and Washington.  Essentially, America needs a federal law with three main components: a set of rules and principles for the drawing of district borders, nonpartisan redistricting commissions in each state, and a federal commission of oversight that would also serve as the institution of appeal.
 

There are another 840,000 people on parole and a staggering 3.7 million people on probation. Particularly given the often onerous conditions of probation, policymakers should be cautious of “alternatives to incarceration” that can easily widen the net of criminalization to people who are not a threat to public safety.
Looking at the big picture requires us to ask if it really makes sense to lock up 2.3 million people on any given day, giving this nation the dubious distinction of having the highest incarceration rate in the world. Both policymakers and the public have the responsibility to carefully consider each individual slice in turn to ask whether legitimate social goals are served by putting each category behind bars, and whether any benefit really outweighs the social and fiscal costs.




The criminal justice system involves some complicated decisions and relationships, some — but not all — of which can be represented graphically. For example, it’s easy to show how jails rent space to state and federal agencies, and that 5,000 youth are actually in adult facilities. But the offense data oversimplifies how people interact with the criminal justice system. A person in prison for multiple offenses is reported only for the most serious offense so, for example, there are people in prison for “violent” offenses who might have also been convicted of a drug offense. Further, almost all convictions are the result of plea bargains, where people plead guilty to a lesser offense, perhaps of a different category or one that they may not have actually committed.
And many of these categories group together people convicted of a wide range of offenses. For example, “murder” is generally considered to be an extremely serious offense, but “murder” groups together the rare group of serial killers with people who committed acts that are unlikely for reasons of circumstance or advanced age to ever happen again. It also includes offenses that the average American may not consider to be murder at all. For example, the felony murder rule says that if someone dies during the commission of a felony, everyone involved can be as guilty of murder as the person who pulled the trigger. Driving a getaway car during a bank robbery where someone was accidentally killed is indeed a serious offense, but many may be surprised that this is considered murder.

People of color are dramatically overrepresented in the nation’s prisons and jails. These racial disparities are particularly stark for Blacks, who make up 40% of the incarcerated population despite representing only 13% of U.S residents. Gender disparities matter too: rates of incarceration have grown even faster for women than for men. As policymakers continue to push for reforms that reduce incarceration, they should avoid changes that will widen disparities, as has happened with juvenile confinement and with women in state prisons.


 Every year, 626,000 people walk out of prison gates, but people go to jail 10.6 million times each year. Jail churn is particularly high because most people in jails have not been convicted. Some have just been arrested and will make bail in the next few hours or days, and others are too poor to make bail and must remain behind bars until their trial. Only a small number (150,000 on any given day) have been convicted, generally serving misdemeanors sentences under a year.

Even narrow policy changes, like reforms to money bail, can meaningfully reduce our society’s use of incarceration. Meanwhile, some reforms that seem promising have minimal effect, because they simply transfer people from one slice of the correctional “pie” to another. Keeping the big picture in mind is critical if we hope to develop strategies that actually shrink the “whole pie.”

Adding to the universe of people who are confined because of justice system involvement, 22,000 people are involuntarily detained or committed to state psychiatric hospitals and civil commitment centers. Many of these people are not even convicted, and some are held indefinitely. 9,000 are being evaluated pre-trial or treated for incompetency to stand trial; 6,000 have been found not guilty by reason of insanity or guilty but mentally ill; another 6,000 are people convicted of sexual crimes who are involuntarily committed after their prison sentences are complete. While these facilities aren’t typically run by departments of correction, they are in reality much like prisons.


How many people are locked up for a drug offense? We know that almost half a million people are locked up because of a drug offense. The data confirms that nonviolent drug convictions are a defining characteristic of the federal prison system, but play only a supporting role at the state and local levels. While most people in state and local facilities are not locked up for drug offenses, most states’ continued practice of arresting people for drug possession destabilizes individual lives and communities. Drug arrests give residents of over-policed communities criminal records, which then reduce employment prospects and increase the likelihood of longer sentences for any future offenses.
SOURCE: PRISON POLICY REPORTS https://www.prisonpolicy.org/reports/pie2018.html
SEE ALSO: 500 Percent Increase in African American Males Incarcerated Since 1980
https://www.eurweb.com/2015/08/500-percent-increase-in-african-american-males-incarcerated-since-1980/

If Trump is elected president, will constitutional law and American political institutions protect us from a would-be dictator? Europeans worry about the emergence of Caesarism in the United States, just as the founders did when they invented the presidency. Authoritarianism is making gains around the world; why not here? Of course, Trump may not want to be a dictator. He has repeatedly stated his desire to make “deals,” implying a willingness to cooperate with Congress. But there is no reason to believe anything he says; many of his actions and statements are those of someone with a dictatorial mentality if nothing else, and his popular support derives from his authoritarian image: he appeals to people who yearn for a strongman to protect them. So the question is worth asking. What is the answer?

Let’s consider one of Trump’s proposals: to strengthen libel law so that he can punish those who criticize him. Could he do this? He cannot do it by executive order, and he probably cannot do it even if he persuades Congress to pass a law. First Amendment doctrine is clear: a court would strike down the sort of libel law that Trump advocates (or appears to advocate).

But there are ways that Trump could maneuver around this barrier. If he can appoint flunkies to head the Department of Justice and the FBI (Chris Christie, maybe?), they can order agents to spy on a political opponent and bring prosecutions. All that is needed is a reasonable suspicion of law violations, and there are so many laws that any prominent person, particularly journalists and opposition politicians, might violate even if inadvertently—campaign finance laws, tax laws, business licensing laws, and secrecy laws come to mind, depending on the person’s activities—that an excuse for audit, inspection, or surveillance can be ginned up. Judges can interfere at various steps along the way; whether they do will depend on whether there are plausible reasons to think that the person has broken a law (think of Hillary Clinton, for example). While nothing may come of the investigation, the risk of such harassment, if pursued vigorously enough, may deter opposition to Trump at the margin.

This is not to say that Trump would do any of these things. Exposure of politically motivated investigations could damage him politically; and—a theme to which I will return—lower-level officials might refuse to carry out his plans. But there is a long tradition of this type of behavior, both within our country (Nixon) and without (Putin, to pick one of countless examples).

Trump has other avenues for harassing political opponents—and I confine myself to strategies that are within the realm of the possible as suggested by American political history. But first we need to distinguish two routes to power. In the first, Trump sweeps to victory with enormous popular support as well as the support of the Republican establishment, which finally decides to make peace with him. In the second, Trump barely manages to win the election, perhaps because Hillary Clinton at the last moment is indicted for violating secrecy laws. He comes to power with the support of an enthusiastic minority but opposed by both parties and the majority of the population.

For the first, the model is FDR. But FDR was repeatedly blocked by the courts, as Trump would surely be if he sought to exercise dictatorial power. With the Senate on his side, however, he could appoint Trumpian judges and justices; he could even beat the Supreme Court into submission by threatening to pack it as Roosevelt did. Still, I think none of this will come to pass. Even if Trump is elected, he will not have FDR’s majorities in Congress, or last as long as FDR, or command as much popular support. Working with congressional support, he could do some of the things he says he wants to do—end Obamacare and build a Mexican Wall (assuming that he really wants to do these things, which I doubt). But then by definition he is not acting as a dictator. The possibility that a President Trump uses a temporary political majority to strengthen executive power and demolish the remnants of the opposition, in the manner of Hugo Chavez, is a possibility but not one that is (yet) worth considering.

The more interesting case is the second. A President Trump opposed on all sides by Congress, the courts, the media, and all the rest of the establishment, but supported by an enthusiastic base, could accomplish the great things he imagines only if he exercised something like dictatorial power. At a minimum, he would need to:

— Get his people into the bureaucracy, either as recess appointments or as “advisers” who don’t need Senate approval. If he refuses to appoint moderates demanded by the Senate, his advisers may be able to persuade civil servants to implement Trumpian policies but maybe not.

— Use his personal funds to sue his political opponents, and persuade law enforcement to audit, monitor, and investigate them, as discussed above.

— Impound funds appropriated by Congress and use them for projects like expelling illegal immigrants. This is technically illegal, but presidents have for decades denied the constitutionality of the anti-impoundment statute, and Trump’s lawyers could repeat these arguments.

— Build political support by declining to enforce unpopular laws, for example, the land-use and environmental laws that are so unpopular in the west. He can cite Obama’s immigration enforcement actions as precedent if need be. He can exclude Muslims, at least temporarily, if he wants to.

— Focus on foreign affairs, where he has a freer hand. He can threaten to withdraw military and economic aid to Mexico unless it pays for the Wall. He will give the military maximum support. The military is the most trusted public institution; if he can bring it to his side, he will obtain credibility from the wavering middle.

The first point is the most important. The president acts through other people; Trump cannot accomplish anything unless he can place loyalists in positions of power. If the Senate is unified against him, recess appointments and advisers will accomplish little. If he must compromise on appointments, and independent people become attorney general, head of FBI, and the like, then Trump will not be a dictator.

On the other hand, a president’s patronage opportunities are limitless. If Christie has already fallen in line, many more can be expected to do the same. The president wields a veto and can interfere in countless ways with Congress’ legislative goals. Using his veto and appointment power, Trump may be able to make the deals he cares about—giving the Senate laws and patronage positions in return for approval of the positions that he cares about, the positions in the Justice Department, the military, and the judiciary. Moreover, even if a Trumpian movement remains a minority personality-cult, it could hold the balance of power in a enough states to produce natural allies for Trump in Congress.

The separation of powers is a flimsy constraint on Trumpian ambitions. The federal bureaucracy is probably a more significant one. It has proven itself time and again skilled at opposing presidential power through embarrassing leaks, working-to-rule, simple inaction, and, in extremis, threatening to resign. Still, this barrier may not give much reassurance.

What of political constraints? Trump will need some support in Congress, and if the public detests him, representatives will keep their distance. Public hostility will also strengthen the hand of courts and the bureaucracy. If he is to gain significant public support, he will need a grand success. Taking a page from Putin, he could combine a ruthless military victory against a weak but unpopular enemy (but what exactly?) and extraordinary luck—an economic recovery that just happens to occur when he takes office. But in America, even this is not likely to be enough.

Still, Trump has already done some clever things to immunize himself from future political damage. These tactics have received surprisingly little commentary.

First, he has refused to make promises. More precisely, while he has made a very few promises, he has contradicted himself so many times, no one really expects him to keep those very few promises, or has any idea what he might do as president. Normally, this vagueness would be fatal. For whatever reason, it has worked for Trump. The upshot is that as president, unlike other presidents, he will not be constrained, not even minimally, by promises he made on the campaign trail, and so he can do whatever is most expedient.

Second, he has refused to work through the Republican establishment. Working through the Republican establishment means making commitments to party leaders and supporters, which would constrain his behavior as president. But because he has not made such commitments, he faces no such constraints as president—again, unlike any other president in modern times.

Third, he has disregarded what might be called “political manners.” He has casually insulted Latinos, Mexicans, women, disabled people, and veterans. He has mocked and belittled his political opponents. One might say, as his defenders do say, that Trump doesn’t really mean what he says. But that misses the point. By unsettling the implicit rules of the game which govern our politics, he has further eliminated constraints on his presidency. Will he eliminate affirmative action in federal hiring? Or will he strengthen it? No one knows. Having thrown into doubt the unwritten rules that have constrained other presidents, he has more scope to act as he sees fit.

Many of the informal but powerful ways that politics constrains presidents with authoritarian tendencies will not constrain Trump. Whether that means he will be Caesar if elected remains to be seen. I think the likelihood is extremely remote. It is much more likely that his authoritarian tendencies will clash with a legalistic political culture and an individualistic political culture, yielding disruption and gridlock. But that is reason enough to be alarmed.

REPRINTED FROM : http://ericposner.com/category/constitutional-law/

Currently, the US attorney general can remove the special counsel “for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of departmental policies.” Because Attorney General Jeff Sessions has recused himself from the investigation, in Mueller’s case, the power falls in the hands of Deputy Attorney General Rod Rosenstein. There is no way for a special counsel to challenge that decision, even if there’s a case for wrongful termination.

In the 1988 Supreme Court case Morrison v. Olson, 487 U.S. 654 (1988) it was held that the Independent Counsel Act was constitutional.  The Court held that the independent counsel provision of the Ethics in Government Act did not violate the principle of separation of powers because it did not increase the power of one branch at the expense of another. Instead, even though the President could not directly fire an Independent Counsel, the person holding that office was still an officer of the Executive branch and not under the control of either the U.S. Congress or the courts.  It was a 7-1 decision that upheld the Independent Counsel Act — a statute passed in the wake of Nixon’s firing of the Watergate special prosecutor that created an investigator role completely independent from the executive branch. Justice Antonin Scalia was the single dissent on the case, arguing that the independent counsel was a clear disruption of the separation of powers.

Despite the Court’s decision upholding the role of an independent counsel, Congress allowed the act to expire in 1999. In its place, there’s the special counsel, the role Mueller holds, which is largely the same on the merits but is not separate from the administration — the cause for a lot of debate among legal scholars.

Shortly before that, In Re Sealed Case, 665 F. Supp. 56 (D.D.C. 1987) ruled for the first time that the independent-counsel law underpinning an unprecedented number of investigations of Reagan administration figures in the Iran-Contra affair was constitutional.  U.S. District Court Judge Aubrey E. Robinson Jr. said the legislation was an appropriate and measured response by Congress "to the recurrent question of how to enforce the laws of the United States when they are violated by high government officials . . . .”For the United States," Robinson added, "the act represents a landmark effort to instill public confidence in the fair and ethical behavior of public officials."

It was also argued that the independent counsels are "superior officers" who, under the Constitution, must be appointed by the president and confirmed by the Senate.  Judge Robinson rejected the argument. The Constitution, he wrote, "expressly grants to Congress the authority to 'vest the appointment of such inferior officers as they think proper, in the president alone, in the courts of law, or in the heads of departments.' "
The Congress's limits on the Attorney General's authority to remove an independent counsel was also valid for another reason. In United States v. Perkins, 116 U.S. 483, 485, 6 S. Ct. 449, 450 (1886), the Court upheld the power of Congress to place limitations on the Secretary of the Navy's authority to dismiss naval cadets who were inferior officers appointed by the Secretary.

The Court wrote:
We have no doubt that when Congress, by law, vests the appointment of inferior officers in the heads of Departments it may limit and restrict the power of removal as it deems best for the public interest. The constitutional authority in Congress to thus vest the appointment implies authority to limit, restrict, and regulate the removal by such laws as Congress may enact in relation to officers so appointed.
 
Id. at 485, 6 S. Ct. at 450.  Here, because Congress validly vested the appointment of independent counsels in the court of law under Article II, it also validly limited the circumstances under which independent counsels may be removed.

Finally, Judge Robinson explained that “Supreme Court precedent as well as "common sense and the inherent necessities of the governmental coordination" suggest strongly that the authority of independent counsels does not violate the separation of powers principle. In United States v. Nixon, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974), the Court recognized and accepted that "the Attorney General has delegated the authority to represent the United States in these particular matters to a Special Prosecutor with unique authority and tenure." Id. at 694, 94 S. Ct. at 3100. The Court knew that this authority included "plenary authority to control the course of investigation and litigation related to" the Watergate matter. Id. at 694, n. 8, 94 S. Ct. at 3100, n. 8 (citing 38 Fed.Reg. 30739, as amended by 38 Fed. Reg. 32805).

Although the Watergate Special Prosecutor was appointed by a regulation promulgated by the Attorney General, the Court's acceptance of the constitutionality of an independent prosecutor is equally applicable here. In both cases, inferior officers were freed from daily supervision by the  Executive so that they could best perform their duties and thereby satisfy congressional intent. See also, Kendall v. United States, 37 U.S. (12 Pet.) 524, 9 L. Ed. 1181 (1837); Humphrey's Executor, 295 U.S. 602, 55 S. Ct. 869, 79 L. Ed. 1611 (1935); Wiener v. United States, 357 U.S. 349, 78 S. Ct. 1275, 2 L. Ed. 2d 1377 (1958). Here, as in the above-cited cases, the Independent Counsel's power comports with the Constitution.”

As explained in the New York Times, last month Harvey Weinstein—serial sexual predator finally charged for rape--posted $1 million bail, and was on his way home within 10 minutes. Weinstein is a notorious danger to the public and he hasn't spent a moment in jail because he's rich.

Some of the people who cannot make cash bail, like an 18 year old black male by the name of Kalief Browder, never leave jail.  Kalief Browder was held at Riker's Island for three years, much of it in solitary confinement, because his family could not afford to pay his bail after he was accused of stealing a backpack. The state of New York worked for three years to build a case against him and failed.  Kalief Browder, committed suicide after spending three years at Riker's Island without being convicted of a crime.

In our current bail system, people who aren't lucky enough to be rich can be locked away for years while they await trial, not because they are inherently dangerous or likely to flee, but because they are too poor to afford bail.

In fact, seventy percent of people in jail haven’t been convicted of a crime. They just can’t afford bail.  The number of Americans sitting in jail without a conviction is larger than most other countries’ entire incarcerated population.  As explained by “Cherise Fanno Burdeen, CEO of the Pretrial Justice Institute:  “The negative impact of jail starts to accrue after the first 24 hours, and it’s really bad by the third day.”  In a criminal justice system that regularly targets and overpolices poor black and brown people, cash bail is inherently racist and must be ended now.

To understand the unfairness of the cash bail system, read America Is Waking Up to the Injustice of Cash Bail by Bryce Covert.

This is a must read for all those shareholders in the criminal justice system, from judge to prosecutor to defense attorney. In this table are the cost benefit analysis for everything from drug/OWI treatment courts to drug treatment during incarceration to day reporting centers and jail diversion. This meta-analytic research has been endorsed by the Wisconsin Results First Programs Team in the June 2015 report entitled Adult Criminal Justice Program Inventory:Initial Report.  http://www.wsipp.wa.gov/BenefitCost/Pdf/2/WSIPP_BenefitCost_Adult-Criminal-Justice

Prof. Ira Robbins gives without comment a quote attributed to Preet Bharara’s (then U.S. Attorney SDNY) 2014 Harvard Law school Commencement Speech:
 
Whether you are an associate, a law clerk, an assistant D.A., a public defender, or anything else. … [n]othing else matters but doing your job and doing it well.  Every day.  Even when it’s hard.  Even when it’s tedious.  Even when it’s dull.  Even when the work seems small an beneath your brand-name schooling and God-given talent.  It means being the guy who does his job…..
 
As a former public defender who, on more than one occasion, had a difference of opinion with how others defined what the term “doing my job well” meant, I understand commencement speeches are supposed to be broad statements to young minds to inspire them for the future.  So my real problem with this kind of statement is that it utterly fails to take into account Hannah Arendt’s concept of  banality of evil.  While acts of evil can mushroom into monumental tragedies, the individual human perpetrators of those acts are often marked not with the grandiosity of the demonic but with absolute mundanity.
 
The “banality of evil” was a controversial point that Hannah Arendt (October 14, 1906–December 4, 1975) made in 1962, when The New Yorker commissioned her, a Jew of who had narrowly escaped from Nazi Germany herself, to travel to Jerusalem and report on the trial of Adolf Eichmann — one of the chief architects of the Holocaust. In 1963, her writings about the trial were published as Eichmann in Jerusalem: A Report on the Banality of Evil (public library) — a sobering reflection on “the lesson that this long course in human wickedness had taught us — the lesson of the fearsome, word-and-thought-defying banality of evil.”
 
Unfortunately, this is not the only instance Since the reunification of East and West Germany in 1990, the German government' has tried over fifty former East German soldiers for shooting and killing East German citizens who attempted to escape across the East-West German border.  John Tagliabue, Berlin Wall Guards Accused of Shooting Escapees, N.Y. TIMES, June 16, 1991, at 1, 6. 

Whether the government gave explicit orders to- shoot escaping citizens has been a central issue of controversy in the border guard trials. Guards have claimed that, although they may have shot attempted escapees, they were only following orders. Marc Pitzke, East German Border Guards on Trial Viewed Defectors as "Pigs," RUTERs NORTH AMERICAN WIRE, Sept. 4, 1991, available in LEXIS, Int-News Library, Arcnws File (quoting one of the defendant border guards in the first trial. The guard stated that "[we]were obliged to stop escape attempts by more than one person with the use of firearms.I only acted according to orders. I had absolutely no chance to treat this person any other way.").  Apparently, border guards were told that to do their job well, were infact given orders, that allowed shooting anyone escaping to the West.  Tyler Marshall, Pitfalls in the Pursuit of Justice: The Case Against 4 Former East German Border Guards is Trying the Nation's Legal System. Should a Democracy Judge Events that Occurred Under Communist Rule?, L.A. Tnms, Jan. 13, 1992, at Al.
 
Clearly the guards were doing their jobs well.  With absolute banal actions they followed the orders given to them.  How can you prosecute border guards for doing their jobs well?  In fact, that was the defense many guards offered at their trials: we were doing our jobs well and simply following orders. Ex-Border Guards on Trial in Berlin, CH. TIB., Sept. 3, 1991, at 8 (citing argument that East German law outlawed escape from the G.D.R., and that East German leadership issued orders to enforce the law. As one border guard's attorney stated,"[s]oldiers of the National People's Army were simply fulfilling their duty to enforce the law at the time.").  The guards when on to say that doing the job well meant they were told not to think.  The good guard who did his job well exercised no independent thought; rather, it demanded that they do what they were told.  As one of the soldiers at the first trial testified: "We were soldiers--conscripts-who had to obey orders or face military prison." Tamara Jones, E. German Guards on Trial: Can Justice Scale the Wall?, L.A. TIMES, Sept. 17, 1991, at Al. 
 
In others, the border guards were defending their actions much like the police do today when forced to shoot a fleeing felon.  David Margolick, "Just Following Orders': Nuremberg, Now Berlin, N.Y. TIMES, Jan. 26, 1992, sec. 4, at 6.  After all, is not fleeing felon an offender and danger to society as a whole so that strict enforcement of the law by police is the only way to guarantee the health and safety of the State?
 
Do your job well.  Think about it.

Randy Shepard, who served as the chief justice of the Indiana Supreme Court for 25 years, retired from the court in 2012 as the longest-serving state chief justice in American history.  A lifelong Republican in a red state, Shepard has gone through the merit selection process and run in multiple elections.  He once told Mother Jones magazine regarding judicial elections that  “What’s at stake in these big-money elections is the promise of due process and an impartial court,” he told me. “Do I as a citizen walk into that courtroom standing on a relatively level playing field?”

He offered up a hypothetical from a law review article he wrote that, he proudly noted, was cited by Justices Ruth Bader Ginsburg and Anthony Kennedy in the Massey Energy case—the one where the high court ruled that a judge who’d received massive campaign contributions connected to a company had to recuse himself from a case involving that company. “Say you’re going before a trial judge making a decision about the custody of your grandchildren, and your evil son-in-law or daughter-in-law had made a very large contribution to the judge. How would you feel about that? You wouldn’t feel very optimistic, would you?”

The legitimacy of our courts rests on their capacity to give fair answers to controversial questions. Yet Americans are divided in their beliefs about whether our courts operate on unbiased legal principle or political interest.  Now a study by two Harvard Law School professors, Alma Cohen and Crystal S. Yang, examined 15 years of data on 1,400 federal trial judges, and found that “that Republican-appointed judges sentence black defendants to 3.0 more months than similar non-blacks and female defendants to 2.0 fewer months than similar males compared to Democratic-appointed judges, 65 percent of the baseline racial sentence gap and 17 percent of the baseline gender sentence gap, respectively. These dif- ferences cannot be explained by other judge characteristics and grow substantially larger when judges are granted more discretion.” The study found that Republican-appointed judges “sentence black defendants to 3 more months than similar non-blacks and female defendants to 2 fewer months than similar males compared with Democratic-appointed judges,” and that “[t]hese differences cannot be explained by other judge characteristics.”

These findings suggest that presidential appointments of judges can significantly affect nationwide racial and gender gaps in sentencing. Yang and Cohen explain, “[d]uring an average four-year term, a Republican president has the potential to alter the partisan composition of the district courts by over 15 percentage points, potentially increasing the racial and gender sentencing gap by 7.5 and 3 percent, respectively.”

The authors also note the limitations of the study, explaining, “The precise reasons why these disparities by political affiliation exist remain unknown and we caution that our results cannot speak to whether the sentences imposed by Republican- or Democratic-appointed judges are warranted or ‘right.’”