Friday, June 29, 2012

California's Cruel And Unusual Death Penalty 40 Years And $4 Billion After Furman v. Georgia

San Quentin State Prison
40 years ago today, the United States Supreme Court decided Furman v. Georgia, which struck down existing death penalty laws as unconstitutional in violation of the Eighth Amendment's cruel and unusual clause.  California's death penalty was quickly reinstated.

Attempting to comply with Furman, the new statute made the death penalty mandatory for certain first degree murders and other crimes.  But in 1976, the U.S. Supreme Court struck down death penalty laws that provided for mandatory death sentences. The California Supreme Court, relying on the high court's ruling, once again found the state's statute to be unconstitutional.

Undeterred, the California legislature passed a new death penalty law in 1977.  This was followed in 1978 by a ballot proposition, known as the Briggs Amendment, which was similar but more expansive version that sought to encompass more -- virtually all -- categories of murder (including unintentional murders committed during certain felonies).  Briggs passed and it is the law we are living with, so to speak, today.   

Forty years after Furman: $4 billion dollars, over a thousand death sentences, over 720 currently on death row, and 13 executions, none since January 2006.

Tani Cantil-Sakauye, after one year as the Chief Justice of the State of California, has concluded that the state's capital punishment system is "not effective" and requires "structural changes" that the State cannot afford.  Her predecessor, Ron George, who was Chief Justice for 15 years, came to the same conclusion, describing California's death penalty scheme as "dysfunctional."

An extensive study by Arthur Alarcon, long-time judge of the Ninth Circuit Court of Appeal, who, together with law professor Paula Mitchell, determined that California's death penalty system is currently costing the state about $184 million per year.  They concluded that "since reinstating the death penalty in 1978, California taxpayers have spent roughly $4 billion to fund a dysfunctional death penalty system that has carried out no more than 13 executions."

Justice Byron White observed in Furman that:
When imposition of the penalty reaches a certain degree of infrequency, it would be very doubtful that any existing general need for retribution would be measurably satisfied.  Nor could it be said with confidence that society’s need for specific deterrence justifies death for so few when for so many in like circumstances life imprisonment or shorter prison terms are judged sufficient, or that community values are measurably reinforced by authorizing a penalty so rarely invoked.” 
The infrequency of executions and the randomness with regard to which condemned inmates actually will be executed have made a mockery of the supposedly rational justifications for the death penalty.  In addition, given the current backlog and the serious problems identified by the California Commission for the Fair Administration of Justice (CCFAJ) -- problems that would require an enormous influx of state funds to fix -- it simply is not possible that defendants who are only now being sentenced to death will have their death sentences carried out.  Because it is “so wantonly and so freakishly” used, California’s death penalty has become a wholly arbitrary punishment in the same sense as the death penalty laws that were struck down in Furman.

Justice Potter Stewart famously characterized the Texas and Georgia statutes at issue in Furman as being “cruel and unusual in the same way that being struck by lightning is cruel and unusual.”  What he meant was that of all those who committed death eligible crimes, the petitioners were “among a capriciously selected random handful upon whom the sentence of death has in fact been imposed . . . [and] the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.”

Application of Furman’s benchmark for determining arbitrariness demonstrates that only a “capriciously selected random handful” of death-sentenced inmates in California will actually be executed.  A new death row prisoner would have to get in line behind 720 condemned inmates.  He or she would then have to wait years for appointment of appellate counsel (currently a 5 year wait) and even longer for the appointment of state habeas counsel (8-10 years).  Even after these lawyers are appointed and appellate briefs and habeas petitions are filed, the case will not be heard and decided before the several hundreds of cases that have preceded it.  And then, after all this time and expense, the California Supreme Court, in virtually every case regardless of the merits, will uphold the death sentence.   Then the case moves on to federal court, which has its own backlog, and often requires new counsel, with proceedings currently averaging over six years in district court followed by over four years of appellate review. 

Justice White noted in Furman that where the “penalty is so infrequently imposed that the threat of execution is too attenuated to be of substantial service to criminal justice” it is unconstitutional.  As he stated, when the death penalty “ceases realistically to further [the social ends it was deemed to serve] . . .  its imposition would then be the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.  A penalty with such negligible returns to the State would be patently excessive and cruel and unusual punishment violative of the Eighth Amendment.”

We have far surpassed this point in California.

The SAFE California Act is on the November ballot.  If it passes it would replace California's multi‑billion dollar death penalty with life imprisonment without parole and require those convicted of murder to work and pay restitution to victim families through the victim compensation fund.  It would also set aside $100 million in budget saving for local law enforcement for the investigation of unsolved rape and murder cases.

Please join the effort to replace the death penalty by clicking here:  SAFE California.

Thursday, June 28, 2012

R.I.P. Samuel Lopez

On June 27, 2012, Arizona executed Samuel Lopez for the rape and murder of 59-year-old Estefana "Essie" Holmes.

Lopez's attorneys argued that his trial lawyers provided constitutionally ineffective assistance by failing to present any evidence of Lopez's  horrific childhood, which would have been critical to the jury's determination of whether he should be sentenced to life or death.  The jury never learned, for example, that Lopez's childhood was filled with poverty, neglect, abuse and periods of homelessness during which he often had to sleep in cemeteries. Lopez dropped out of school in the ninth grade and became addicted to sniffing paint.

Lopez was originally scheduled to be executed on May 16, 2012, but received a temporary stay of execution because of serious issues with regard to the fairness of the clemency process.  On May 7, 2012, defense attorney, Assistant Federal Public Defender Kelley Henry, walked out of the clemency hearing claiming the Arizona Board of Executive Clemency did not have the authority to hear the case.  Henry contended that Arizona Governor Jan Brewer violated several state statues when she appointed three new members to the five member clemency board.  Violations included that the new members had not completed training required by state statute, that their interviews violated open meeting laws by taking place behind closed doors, and that one new member is a lobbyist for a police association that advocates the death penalty. 

The Arizona Supreme Court ordered a temporary stay so that the board members could complete a mandatory four-week training course but then another stay was sought on the grounds that Governor Brewer had appointed "political cronies" to the board, making a fair hearing impossible.  That stay was rejected.  Clemency was denied on June 22nd.

This is the 23rd execution in the United States in 2012, the fourth in Arizona.

Wednesday, June 27, 2012

Mitt Romney And The Odor Of Mendacity

Didn't you notice a powerful and obnoxious odor of mendacity in this room?... There ain't nothin' more powerful than the odor of mendacity... You can smell it.  -- Tennessee Williams from Cat on a Hot Tin Roof
Several months ago, Paul Krugman wrote about Mitt Romney's dishonest campaign and penchant for uttering false and fraudulent statements:  "Won’t Mr. Romney pay a price for running a campaign based entirely on falsehoods? He obviously thinks not, and I’m afraid he may be right."

Krugman went on to predict that "Romney will probably be called on some falsehoods" but "most of the news media will feel as though their reporting must be “balanced,” which means that every time they point out that a Republican lied they have to match it with a comparable accusation against a Democrat — even if what the Democrat said was actually true or, at worst, a minor misstatement."

Fast forward to last week's article in the New York Times, "Fact-Checking Obama and Romney," which stated that:
Mr. Obama and Mr. Romney are filling speeches with facts and figures designed to enhance their case and diminish the other guy’s, in the process often making assertions fundamentally at odds with one another. Along the way, both candidates are at times stretching the truth, using statistics without context, exaggerating their own records and misrepresenting their opponent’s. 
A classic example of balance and false equivalence, the article concluded that "[d]etermining who is the worse dissembler can be a subjective exercise, even in an age when news organizations, blogs and partisan groups blitz out regular fact-checks.

But while the Obama campaign's rhetoric can be at times misleading, it cannot be compared to Romney's incessant lying.  Steve Benen at Rachel Maddow's blog has been chronicling Romney's lies for months.  (See his 23rd weekly installment here.)

As Michael Cohen of the Guardian summarizes Romney's "cavalcade of untruths" and concludes:
Granted, presidential candidates are no strangers to disingenuous or overstated claims; it's pretty much endemic to the business. But Romney is doing something very different and far more pernicious. Quite simply, the United States has never been witness to a presidential candidate, in modern American history, who lies as frequently, as flagrantly and as brazenly as Mitt Romney.
And how can Romney get away with it?  Cohen explains:
Now, in general, those of us in the pundit class are really not supposed to accuse politicians of lying – they mislead, they embellish, they mischaracterize, etc. Indeed, there is natural tendency for nominally objective reporters, in particular, to stay away from loaded terms such as lying. Which is precisely why Romney's repeated lies are so effective. In fact, lying is really the only appropriate word to use here, because, well, Romney lies a lot. But that's a criticism you're only likely to hear from partisans.
Pollsters and pundits seems to agree that the election will be extremely close.  Whether the media will ignore the powerful and obnoxious odor of mendacity that surrounds Mitt Romney will be a key factor in the outcome.

Tuesday, June 26, 2012

Robert Reich On The True Meaning Of Patriotism

Excluding Outsiders Or Coming Together For The Common Good?

By Robert Reich, cross-posted from his website

Recently I publicly debated a regressive Republican who said Arizona and every other state should use whatever means necessary to keep out illegal immigrants. He also wants English to be spoken in every classroom in the nation, and the pledge of allegiance recited every morning. “We have to preserve and protect America,” he said. “That’s the meaning of patriotism.”

To my debating partner and other regressives, patriotism is about securing the nation from outsiders eager to overrun us. That’s why they also want to restore every dollar of the $500 billion in defense cuts scheduled to start in January. 

Yet many of these same regressives have no interest in preserving or protecting our system of government. To the contrary, they show every sign of wanting to be rid of it.
In fact, regressives in Congress have substituted partisanship for patriotism, placing party loyalty above loyalty to America.

The GOP’s highest-ranking member of Congress has said his “number one aim” is to unseat President Obama. For more than three years congressional Republicans have marched in lockstep, determined to do just that. They have brooked no compromise. 

They couldn’t care less if they mangle our government in pursuit of their partisan aims. Senate Republicans have used the filibuster more frequently in this Congress than in any congress in history.
House Republicans have been willing to shut down the government and even risk the full faith and credit of the United States in order to get their way.

Regressives on the Supreme Court have opened the floodgates to unlimited money from billionaires and corporations overwhelming our democracy, on the bizarre theory that money is speech under the First Amendment and corporations are people.

Regressive Republicans in Congress won’t even support legislation requiring the sources of this money-gusher be disclosed.

They’ve even signed a pledge – not of allegiance to the United States, but of allegiance to Grover Norquist, who has never been elected by anyone. Norquist’s “no-tax” pledge is interpreted only by Norquist, who says closing a tax loophole is tantamount to raising taxes and therefore violates the pledge.

True patriots don’t hate the government of the United States. They’re proud of it. Generations of Americans have risked their lives to preserve it. They may not like everything it does, and they justifiably worry when special interests gain too much power over it. But true patriots work to improve the U.S. government, not destroy it.

But regressive Republicans loathe the government – and are doing everything they can to paralyze it, starve it, and make the public so cynical about it that it’s no longer capable of doing much of anything. Tea Partiers are out to gut it entirely. Norquist says he wants to shrink it down to a size it can be “drowned in a bathtub.”

When arguing against paying their fair share of taxes, wealthy regressives claim “it’s my money.” But it’s their nation, too. And unless they pay their share America can’t meet the basic needs of our people. True patriotism means paying for America.

So when regressives talk about “preserving and protecting” the nation, be warned: They mean securing our borders, not securing our society. Within those borders, each of us is on our own. They don’t want a government that actively works for all our citizens.

Their patriotism is not about coming together for the common good. It is about excluding outsiders who they see as our common adversaries. 

Robert Reich is Chancellor's Professor of Public Policy at the University of California at Berkeley.  He writes a blog at  His most recent book is Beyond Outrage

Monday, June 25, 2012

Supreme Court Politics

It was a big -- and telling -- day at the high court even without the highly anticipated Affordable Care Act decision, which is now expected to be issued on Thursday.  As I wrote earlier, Justice Scalia's raving dissent about state sovereignty in the Arizona immigration case starkly illustrates that he is more of a political operative than an impartial judge.

And, not surprisingly, Scalia's obeisance to states' rights was nowhere in evidence in another case decided today, a case in which a 5-4  majority struck down Montana’s 100-year-old anti-corruption law banning corporate spending on elections without ever hearing arguments in the case.  As Nicole Flatow at American Constitution Society summarized:  "Although Montana’s law was intended to combat corruption in election spending, the five-justice majority held in a paragraph-long decision that this case was controlled by Citizens United, which found that independent expenditures by corporations 'do not give rise to corruption.'” 

Flatow points out that, "A supermajority of Montanans thought otherwise when they passed the Corrupt Practices Act in 1912," and as Justice Stephen Breyer wrote in his dissent, “Montana’s experience, like considerable experience elsewhere since the Court’s decision in Citizens United, casts grave doubt on the Court’s supposition that independent expenditures do not corrupt or appear to do so.”
Breyer's dissent, joined by Justices Ginsburg, Kagan and Sotomayor, pointedly concluded as follows:
Were the matter up to me, I would vote to grant the petition for certiorari in order to reconsider Citizens United or, at least, its application in this case. But given the Court’s per curiam disposition, I do not see a significant possibility of reconsideration. Consequently, I vote instead to deny the petition. 
And there you have it.  As Amy Davidson notes, "Breyer is saying that he does not trust the majority enough to even listen, and would rather that it not hear the case at all; since he was joined by Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, that means the four of them didn’t believe that a single of the other five Justices had been at all chastened by the consequences of Citizens United."

And so, E.J. Dionne pleads:
Will everyone please finally admit conservatives actually don’t care a whit about states’ rights unless invoking states’ rights happens to be helpful to the conservative agenda? Conservatives on the court have become complete and utter hypocrites on the matter of what states can and can’t do.

This has stuck in my craw for a long time. Recall that the Supreme Court had absolutely no qualms about telling the state of Florida in 2000 that there was no way it could recount its votes in a fashion that would be satisfactory, and never mind that the Florida Supreme Court had ruled in favor of recounts. Those recounts might have gotten in the way of George W. Bush’s elevation to the presidency. Face it: If states’ rights are inconvenient to the outcome conservatives want, conservative justices will find a way to supersede them.
James Fallows recently wrote with regard to the Affordable Care Act case that "confidence in the very idea that the Roberts majority will approach this as a "normal" legal matter, rather than as one more Bush v. Gore front in the political wars, grows ever harder to maintain."

Which leads Ed Kilgore to draws what to me is the most critical lesson, whatever happens with the health care decision:
But it’s becoming more obvious each day that the judicial counter-revolutionaries of the Supreme Court don’t need the crisis atmosphere that they used to justify Bush v. Gore to continue its legacy. Indeed, it seems to have become the only precedent the majority reliably respects. Maybe they will surprise us all on Thursday and step back from the brink. But without question, if another seat on the Court falls their way, the constitutional substructure of every 20th century social accomplishment from the New Deal to the Civil Rights Act to the Clean Air Act to the right to an abortion is in immediate danger. And anyone who remembers that strange night in 2000 when the Court’s Republican appointees decided to seize the opportunity to choose a president should not be surprised.

Supreme Court Bans Mandatory Life-Without-Parole For Children Convicted Of Homicide

Bryan Stevenson
In Miller v. Alabama and Jackson v. Hobbs, the Supreme Court holds that mandatory life-without-parole sentences for all children 17 or younger convicted of homicide are unconstitutional.  (I wrote about these cases earlier here.)  Both cases were argued by the brilliant and heroic Bryan Stevenson.

Here is a summary of this great outcome from Equal Justice Institute of which Bryan is the founder and executive director:

The Court today struck down statutes in 29 states that provide for mandatory life-without-parole sentences for children, reasoning that mandatory imposition of life-without-parole sentences on children “contravenes Graham’s (and also Roper’s) foundational principle: that imposition of a State’s most severe penalties on juvenile offenders cannot proceed as though they were not children.”

"This is an important win for children. The Court took a significant step forward by recognizing the fundamental unfairness of mandatory death-in-prison sentences that don't allow sentencers to consider the unique status of children and their potential for change," said Bryan Stevenson, Executive Director of the Equal Justice Initiative, who represents Jackson and Miller. "The Court has recognized that children need additional attention and protection in the criminal justice system.”

Today’s decision requires the lower courts to conduct new sentencing hearings where judges will have to consider children’s individual characters and life circumstances, including age, as well as the circumstances of the crime.

While the Court did not categorically ban juvenile life without parole in all circumstances, Justice Kagan wrote for the majority that, “given all we have said in Roper, Graham, and this decision about children’s diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.”

Stevenson cautioned, however, that sentencing courts’ discretion must be exercised in an informed and thoughtful way that acknowledges that children are biologically different than adults and less responsible for their wrongdoing, and that the courts should provide the individuals affected by the ruling a meaningful opportunity to show they have rehabilitated themselves and are appropriate candidates for release.
Stevenson added that historically, race and poverty have been powerful forces in influencing which children receive life-without-parole sentences.

Today's decision follows the Court's earlier rulings in Roper v. Simmons (2005) and Graham v. Florida (2010), which acknowledge the diminished culpability of children.

Groups as diverse as the American Psychological Association, the American Academy of Child and Adolescent Psychiatry, the American Psychiatric Association, the Council of Juvenile Correctional Administrators, the American Bar Association, mental health professionals, former juvenile court judges, criminologists, victims, and national advocacy organizations filed amicus briefs in the cases to urge the Court to give children an opportunity to have their sentences reviewed later in life.

The Supreme Court Strikes Down Much Of Arizona's Anti-Immigration Law While Scalia Rants

The Supreme Court issued its much-anticipated ruling on Arizona's harsh anti-immigration law, upholding the most controversial part of the law -- but striking the rest.

As the New York Times reports:
The court unanimously sustained the law’s centerpiece, the one critics have called its “show me your papers” provision. It requires state law enforcement officials to determine the immigration status of anyone they stop or arrest if there is reason to suspect that the individual might be an illegal immigrant.
The justices parted ways on three other provisions. Justice Anthony M. Kennedy, writing for five members of the court, said the federal government’s broad powers in setting immigration policy meant that other parts of the state law could not be enforced. 
The provisions that were struck included Section 3 criminalizing the failure of persons to carry immigration documents; Section 6, barring undocumented immigrants from seeking work; and Section 6, allowing warrantless arrests when an officer has probable cause to believe a person who has committed a crime is undocumented.

One of the more fascinating -- and disturbing -- aspects of the decision was Justice Scalia's raving dissent from the portion of the majority opinion that blocked implementation of the Arizona law.

As Ben Jacobs writes, "the conservative icon rails against the court’s decision over 22 pages and makes strained claims for Arizona’s continued ability as sovereign state to regulate immigration while citing dubious authorities like the notorious Kentucky and Virginia Resolutions (documents written anonymously by Madison and Jefferson that have repeatedly been rejected by the court over the past 200 years when cited by segregationists and secessionists)."

Here's an excerpt:
But there has come to pass, and is with us today, the specter that Arizona and the States that support it predicted: A Federal Govern­ment that does not want to enforce the immigration laws as written, and leaves the States’ borders unprotected against immigrants whom those laws would exclude. So the issue is a stark one. Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws?

A good way of answering that question is to ask:  Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding [that the national government has supreme jurisdiction over immigration policy]?
Huh?  As Jed Lewison at Daily Kos puts it:  "So according to Scalia's logic, SB1070 is constitutional because Arizona wouldn't have entered into the Union if it weren't. Brilliant!"

Remarkably, Scalia criticized the Administration's immigration policy and specifically went after Obama's recently-announced executive order to stop the deportation of  children whose parents illegally entered the country -- which post-dated and had nothing to do with this case: 
It has become clear that federal enforcement priorities—in the sense of priorities based on the need to allocate “scarce enforcement resources”—is not the problem here. After this case was argued and while it was under consideration, the Secretary of Homeland Security announced a program exempting from immigration enforcement some 1.4 million illegal immigrants under the age of 30.
[For certain illegal immigrants] immigration officials have been directed to “defe[r] action” against such individual “for a period of two years, subject to renewal.” The husbanding of scarce enforcement resources can hardly be the justification for this, since the considerable administrative cost of conduct­ing as many as 1.4 million background checks, and ruling on the biennial requests for dispensation that the nonenforcement program envisions, will necessarily be deducted from immigration enforcement. The President said at a news conference that the new program is “the right thing to do” in light of Congress’s failure to pass the Administration’s proposed revision of the Immigration Act. Perhaps it is, though Arizona may not think so. But to say, as the Court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the President declines to enforce boggles the mind.
As UCLA law professor Adam Winkler, Scalia has "finally jumped the shark":
He claims to respect the founding fathers, but his dissent channels the opponents of the Constitution. Back then, opponents argued that the Constitution denied states their sovereignty by giving too much power to the federal government, as with immigration. Now Scalia echoes their complaints that states are being denied their sovereignty. States are not sovereign when it comes to powers vested in Congress, such as the authority over immigration and naturalization.
 Ben Jacobs rightly concludes that "The health care decision is only days away and it is explicit that at least one justice is making his decisions on political grounds."

Mitt Meme

I first encountered Robbie Conal's work when I was living in D.C. in the 1980s, working on Iran-Contra related litigation, and Conal's posters would magically appear throughout the City.  He had -- and continues to have -- the remarkable ability to capture in a drawing with a few choice words the corruption, dishonesty and hypocrisy of our political, religious and financial leaders.

He just made this Mitt Meme, which he promises will soon be a poster.  Click on the link and make your own caption.  I added the caption above, which provokes the eternal question:  Mitt or Groucho?

Sunday, June 24, 2012

Mets All Time

In honor of the Mets' 50th Anniversary (which I wrote about here), SNY, the Mets' TV network, aired a two-hour special on the Mets' All-Time team this week, naming the greatest Met at each position:

Mike Piazza (C)
Keith Hernandez (1B)
Edgardo Alfonzo (2B)
Jose Reyes (SS)
David Wright (3B)
Darryl Strawberry (RF)
Cleon Jones (LF)
Carlos Beltran (CF)
Tom Seaver (RHP)
Jerry Koosman (LHP)
Roger McDowell (RHP)
Tug McGraw (LHP)
Dave Johnson

I can't quibble with any of the selections (with the glaring exception of manager -- it is incomprehensible that Davey Johnson got the nod over Gil Hodges).  Admittedly, this is not exactly Ruth-Gehrig-DiMaggio, but everyone on this list has a special place in the heart of Met fans (even Beltran).

Saturday, June 23, 2012

Relax 'Mitt,' Just Be Yourself

By Tina Dupuy, cross-posted from her website

Mitt Romney’s off-the-cuff comments are starting to seem like Barack Obama’s bowling: Not good. Kind of spectacularly bad. Kitsch on a kind day.

Romney keeps on rolling gutter balls in front of the cameras: “The trees are the right height.” “I like being able to fire people.” “I’m not concerned about the very poor.” “I’m Mitt Romney—and yes Wolf, that’s also my first name.”

Normally the adage “a gaffe is when a politician accidentally tells the truth” applies. On the Jay Leno show, Obama famously compared his bowling skills to those in the Special Olympics. Many, including myself, were offended by the remark (mainly because the Special Olympics athletes are far better bowlers than Mr. Obama). The President apologized profusely for the statement.

But Romney’s greatest gaffes are less accidental nuggets of candor (like, “I have some great friends who are NASCAR team owners.”) and more what you’d call disquieting sound bites of misfired pandering. Moments that can be summed up by the phrase “cheesy grits.”

Yes, he told a crowd in Mississippi during the primary, he had “cheesy grits” (as opposed to cheese grits) for breakfast and he was learning how to say, “ya’ll.” He would have been better off saying sweet tea (a diabetic coma-inducing regional syrup served over ice) is best with Splenda and he was learning how to talk … real … slow.

(Rick Santorum won Mississippi, by the way.)

Yes, when Romney attempts to show how in touch he is with Americans…he ends up displaying exactly how in touch he is with Americans. Meaning: Not at all.

Friday, June 22, 2012

Palate Cleanser: The Kills

An acoustic version of Baby Says by The Kills.

Corporate Takeover At The Supreme Court

I've written previously about the unprecedented pro-corporate bias of the current conservative majority of the Supreme Court, and the insidious role played by the U.S. Chamber of Commerce in getting the Court to hear business cases and to rule in favor of business interests.  (See, e.g., here, here and here.

The Constitutional Accountability Center points out that "without much fanfare, the U.S. Chamber of Commerce is edging towards what could be its first 'perfect' Term before the Supreme Court since at least 1994."  It has "declared victory in all seven of its cases that have reached a clear outcome," which "brings the Chamber’s overall win/loss rate before the Roberts Court up to 68% (60 of 88 cases)."

As CAC's "prior studies establish, this is significantly higher than the Chamber’s success before the Rehnquist Court of 56% (45 of 80 cases), and dramatically higher than its success rate before the Burger Court, when the Chamber only won 43% (15 of 35) of its cases."

Thursday, June 21, 2012

R.I.P. Gary Simmons

Roman Colosseum lit to protest an execution
On June 20, 2012, Mississippi executed Gary Simmons for the murder of Jeffrey Wolfe in 1996. 

Simmons and an accomplice, Timothy Milano, were both convicted of killing Wolfe after an argument over the collection of a drug debt.  Authorities concluded that it was Milano who shot and killed Wolfe but it was Simmons, a butcher, who subsequently dismembered the body and raped Wolfe's girlfriend. Simmons was sentenced to death for the murder and two life terms on charges of kidnapping and raping the woman. Milano was sentenced to life for capital murder and 30 years for kidnapping.

Appeals to allow Simmons' current counsel to pursue claims based on ineffective assistance of prior counsel and mental illness were rejected.  A petition to the United States Supreme Court stated that "post-conviction counsel did not arrange for Mr. Simmons to undergo any mental health evaluations and it appears that counsel completely overlooked raising any claims regarding Mr. Simmons' addiction, posttraumatic stress disorder and brain dysfunction even though a cursory investigation would have raised a number of red flags."

This was the 22nd execution in the United States this year and the sixth in Mississippi (the third this month).

Darryl Issa's Contemptible Actions

Darryl Issa, a California Congressman, made his fortune manufacturing car alarms and used his wealth to fund the recall of California Governor Gray Davis, who was succeeded by Arnold Schwarzenegger.  (Issa reportedly intended to place himself on the ballot before Schwarzenegger jumped in.)

As chair of the House Oversight and Government Reform Committee, Darryl Issa has called President Obama "one of the most corrupt presidents in modern times."  He declared he would hold "hundreds of hearings" to uncover wrongdoing in the Obama Administration.  But, as Alex Seitz--Wald details, Issa "often ended up shooting blanks."
His investigations into WikiLeaks, Fannie and Freddie, the FDA, and countless others have failed to expose any massive wrongdoing by the administration and after a year and half, he has little to show for them. . . .

Other investigations bordered on fringe absurdism, like when he asked the Department of Justice to investigate ACORN more than a year after it went extinct. There was also the hearing he held probing the Affordable Care Act’s contraception mandate, which famously included a panel featuring zero women.
But yesterday, as Seitz-Wald reports, Issa "finally got his big trophy and moment in the cable news sun today when his committee voted to hold Attorney General Eric Holder in contempt of Congress, following nearly seven hours of testimony on the ATF’s botched “Fast and Furious” gun scandal."

Meteor Blades at Daily Kos has the background:
The issue that spurred the committee's vote is Holder's unwillingness to release documents and internal communications at the Department of Justice regarding the operation known as "Fast and Furious." That operation, run by the Bureau of Alcohol, Tobacco, Firearms and Explosives allowed guns bought in the United States to cross into Mexico. The idea was to nail straw purchasers of weapons in United States and also high-level members of Mexican drug gangs that obtained the weapons.

According to the 2011 report Fueling Cartel Violence prepared for Oversight Committee Chairman Darrell Issa (R-Calif.) and Senate Judiciary Committee Ranking Member Charles Grassley (R-Iowa), hundreds of firearms made their way into the arsenals of three of the largest drug cartels: Sinaloa, El Teo and La Familia.

Mexican authorities have claimed that as many as 150 people have been killed by these firearms in an ongoing war that has taken the lives of more than 50,000 people since 2006. Some 2,000-plus firearms are said to have made their way into Mexico as a result of "Fast and Furious." A U.S. Border Patrol agent, Brian Terry, was also killed with one of the weapons, an AK47-style firearm. Among the weapons allowed to leave the states were .50 caliber sniper rifles that may have made the difference in battles between cartel members and Mexican police.
As Jeremy Leaming at American Constitution Society explains:
U.S. Rep. Elijah E. Cummings (D-Md.) told The Times the administration was forced into invoking privilege because of the Issa-led committee’s “unreasonable insistence on pressing forward with contempt despite the attorney general’s good faith offer.”

The Department of Justice has provided Issa’s committee nearly 8,000 documents for the congressional investigation into the tactics used in the federal government’s efforts to stop violence related to drug smuggling along the southern border.

But Issa and other Republican members on the committee have feigned disbelief, arguing that much more is needed to complete their work.
I'm not particularly comfortable defending this -- or any -- Administration's invocation of executive privilege but Issa's relentless pursuit of the president, culminating in this investigation of a trumped-up scandal is nothing more than cynical political theater.

As Kevin Drum notes, this is a "fairly ridiculous invented controversy that Republicans care about only because (a) it involves guns, and (b) it involves the Obama administration."  Indeed, Issa "more or less admitted the fever swamp origins of tea party outrage over Fast & Furious when he told Sean Hannity that Obama was using the program to 'somehow take away or limit people's Second Amendment rights.''  This mad notion was seconded by Newt Gingrich on on CNBC last night.  According to Steve Benen, Gingrich "argued, with a straight face, that the so-called "Fast and Furious" controversy was part of an elaborate ploy to enact gun control."

Crazy, right?  "And yet," as Benen sums it up, "this nuttiness has been fully embraced by many House Republicans, many Senate Republicans, Fox News, Newt Gingrich, the NRA, and some deeply strange folks on far-right blogs and talk radio. To put it mildly, it's disconcerting."

 With the contempt citation going to the full House next week, you can take action by calling (202-224-3121) or emailing your representatives and urging them to oppose this politically motivated witch hunt.

Tuesday, June 19, 2012

Justice Scalia: The Opportunistic Originalist

By Jeremy Leaming, cross-posted from American Constitution Society

We likely shouldn’t be surprised by Justice Antonin Scalia’s “flip-flop,” as TPM puts it, on precedent supporting modern understanding of the Constitution’s commerce clause.

TPM’s Sahil Kapur reports that in his forthcoming book, Scalia says the Supreme Court’s 1942 opinion in Wickard v. Filburn wrongly construed the scope of the commerce clause. As Kapur and many others have noted, including the Obama administration, Scalia cited Wickard in a 2005 opinion concluding that a law barring personal cultivation of marijuana for medical use was not beyond the scope of the commerce clause.

In that case, Gonzales v. Raich, Scalia lodged a concurring opinion, citing precedent in holding, “where Congress has the authority to enact a regulation of interstate commerce, ‘it possesses every power needed to make that regulation effective.’”

In an e-mail to TPM, constitutional law expert Adam Winkler wrote, “This is typical Scalia.”

Winkler, a law professor at UCLA, continued:
He respects precedents when they fit his conservative ideology and disregards them when they don’t. He claims that history should guide judges. But nothing about the history of the commerce clause has changed. What’s changed is the political implications of the commerce clause. When it’s being invoked for law and order conservatives, he favors Wickard. When invoked by liberals to support healthcare reform, he thinks Wickard is bad law.
Once again, we see that Scalia’s orginalism is a charade.
There is also the spectacle of oral argument, where Scalia not only revealed a wobbly understanding of the health care insurance system but affinity for the simplistic, but radically libertarian arguments lobbed against the Affordable Care Act’s minimum coverage provision. The minimum coverage provision is integral to the health care reform law, requiring those who can afford to do so to obtain a minimum amount of the health care coverage starting in 2014.

The provision was quickly attacked by the Right as a dire threat to liberty. If the government were able to require many indiviuals to purchase health care insurance, then surely it could also force individuals to buy broccoli and gym memberships, the law’s opponents argued.

Monday, June 18, 2012

Acquittal On Steroids

Roger Clemens was acquitted today of perjury charges based on his testimony before Congress in 2008, in which he stated that he never used steroids or human growth hormone.  After an earlier mistrial, federal prosecutors decided to retry Clemens and, as the New York Times reports, the second trial was far more extensive than the first, with 46 witnesses over more than eight weeks.

 I have long despised Clemens for his petulance, his arrogance and not least, his beaning of Mike Piazza in 2000, followed in the the World Series of that year with his inexcusable heaving of a piece of  broken bat at Piazza after it was shattered by a pitch.   Nevertheless, for the reasons I explored in a piece re-posted below on the Barry Bonds trial (which also ended in embarrassment for the prosecution when it was able to obtain a conviction on only one count, an obstruction of justice charge) the case served no purpose and was a colossal waste of resources.

Trial On Steroids

So many people in and out of baseball hate Barry Bonds passionately.  He was a selfish player who focused unduly on his own statistics.  He is arrogant and unapologetic.  He has always treated the press with great disdain.  He had his own Barcalounger in the Giants' clubhouse.  Unlike, perhaps, more sympathetic marginal or fading players, he was a brilliant player in his prime when he felt compelled to cheat by using steroids.  He is a petty man who cheated because he was jealous of Sammy Sosa and Mark McGwire, and wanted to become not just the best all around player, but the home run king.  And it worked; he not only broke McGwire's single-season home run record, even more egregiously, he eclipsed the hallowed career home run mark of the beloved Hank Aaron.  Have I missed anything?  Oh, and he denied knowingly taking steriods when forced to testify under oath before a grand jury.

For the last of these, Bonds is on trial, charged with lying to the grand jury and obstruction of justice.  It seems, however, that those who hate Barry Bonds hope he is humiliated, found guilty, and sentenced to a long prison term for his many other other non-criminal offenses.

I am not one of the Barry Haters.  Watching Barry Bonds play for the Giants, both pre- and post-alleged steroid use was one of my greatest thrills as a baseball fan.  Every time I went to the ballpark I felt it was a privilege to be able to see one of the most amazing players to have ever played.  In 2001, the year he hit 73 home runs, he hardly ever got a decent pitch (he walked 177 times that year), but when he did he crushed it.  Maybe steroids added some distance to these blasts, but the discipline, focus, timing and beauty of these at bats can't be credited to drugs.  The dude could flat out hit.

OK, with that disclaimer out of the way, I think the issue is less about Bonds and more about whether the United States Government should be expending so many resources on the use of performance enhancing drugs in baseball. 

Want To Combat Police Misconduct And Document NYPD's "Stop And Frisk"? There's An App For That

The New York Civil Liberties Union announced “Stop and Frisk Watch,”which it describes as "a free and innovative smart phone application that will empower New Yorkers to monitor police activity and hold the NYPD accountable for unlawful stop-and-frisk encounters and other police misconduct."

Mayor Bloomberg continues to defend the stop-and-frisk policy despite serious concerns that it disproportionately targets young black men. Yesterday, as the New York Times reports, "several thousand demonstrators conducted a silent march" to protest the  policy, "which the organizers say single out minority groups and create an atmosphere of martial law for the city’s black and Latino residents."  

NYCLU Executive Director Donna Lieberman explains that the “Stop and Frisk Watch is about empowering individuals and community groups to confront abusive, discriminatory policing.”
The NYPD’s own data shows that the overwhelming majority of people subjected to stop-and-frisk are black or Latino, and innocent of any wrongdoing. At a time when the Bloomberg administration vigorously defends the status quo, our app will allow people to go beyond the data to document how each unjustified stop further corrodes trust between communities and law enforcement.
Stop and Frisk Watch is available in English and Spanish on Android phones.  An iPhone version will be released later this summer. The app allows bystanders to fully document stop-and-frisk encounters and alert community members when a street stop is in progress.

According to ThinkProgress, since the app’s release last week, more than 75,000 people have downloaded it.

Sunday, June 17, 2012

Watergate At 40: Not Just A Burglary And Coverup

Forty years ago, Democratic Party headquarters at the Watergate office building was burglarized. Carl Bernstein and Bob Woodward have written a new piece in the Washington Post to commemorate the 40th Anniversary of Watergate concluding, with the benefit of far greater resources unavailable at the time, that "Nixon was far worse than we thought."

There is nothing particularly revelatory or newsworthy about the latest Woodward and Bernstein collaboration, but it provides a helpful reminder that "Watergate" was not merely a "third-rate burglary," as Nixon's press secretary described it at the time, and that the coverup was not worse than the crime, as is commonly remarked.  Indeed, the expansive record subsequently made available establishes that "gumshoeing, burglary, wiretapping and political sabotage had become a way of life in the Nixon White House" long before Watergate and demonstrates "the president’s personal dominance over a massive campaign of political espionage, sabotage and other illegal activities against his real or perceived opponents."

Woodward and Bernstein summarize the "five successive and overlapping wars" that Nixon oversaw --  "against the anti-Vietnam War movement, the news media, the Democrats, the justice system and, finally, against history itself."  They say that this "all reflected a mind-set and a pattern of behavior that were uniquely and pervasively Nixon’s: a willingness to disregard the law for political advantage, and a quest for dirt and secrets about his opponents as an organizing principle of his presidency."

 In the end:
Nixon had lost his moral authority as president. His secret tapes — and what they reveal — will probably be his most lasting legacy. On them, he is heard talking almost endlessly about what would be good for him, his place in history and, above all, his grudges, animosities and schemes for revenge. The dog that never seems to bark is any discussion of what is good and necessary for the well-being of the nation.

The Watergate that we wrote about in The Washington Post from 1972 to 1974 is not Watergate as we know it today. It was only a glimpse into something far worse. By the time he was forced to resign, Nixon had turned his White House, to a remarkable extent, into a criminal enterprise.

On the day he left, Aug. 9, 1974, Nixon gave an emotional farewell speech in the East Room to his staff, his friends and his Cabinet. His family stood with him. Near the end of his remarks, he waved his arm, as if to highlight the most important thing he had to say.

“Always remember,” he said, “others may hate you, but those who hate you don’t win unless you hate them, and then you destroy yourself.”

His hatred had brought about his downfall. Nixon apparently grasped this insight, but it was too late. He had already destroyed himself.

Saturday, June 16, 2012

Sweets Of Adversity: Aung San Suu Kyi's Accepts Her Nobel Peace Prize After A Delay Of 21 Years

Daw Aung San Suu Kyi finally was able to accept the Nobel Peace Prize awarded to her in 1991, when she was under house arrest in Myanmar.  Here are some highlights of her speech
Absolute peace in our world is an unattainable goal. But it is one towards which we must continue to journey, our eyes fixed on it as a traveler in a desert fixes his eyes on the one guiding star that will lead him to salvation. Even if we do not achieve perfect peace on earth, because perfect peace is not of this earth, common endeavors to gain peace will unite individuals and nations in trust and friendship and help to make our human community safer and kinder.

Of the sweets of adversity, and let me say that these are not numerous, I have found the sweetest, the most precious of all, is the lesson I learnt on the value of kindness. Every kindness I received, small or big, convinced me that there could never be enough of it in our world. To be kind is to respond with sensitivity and human warmth to the hopes and needs of others. Even the briefest touch of kindness can lighten a heavy heart. Kindness can change the lives of people.

Ultimately our aim should be to create a world free from the displaced, the homeless and the hopeless, a world of which each and every corner is a true sanctuary where the inhabitants will have the freedom and the capacity to live in peace. Every thought, every word, and every action that adds to the positive and the wholesome is a contribution to peace. Each and every one of us is capable of making such a contribution. Let us join hands to try to create a peaceful world where we can sleep in security and wake in happiness.

Womack Comeback

Bobby Womack, the iconic soul and R&B artist -- and Rock & Roll Hall of Famer -- released his first album of new material in almost twenty years.  On The Bravest Man in the World, Womack collaborates with Damon Albarn and XL Recordings' Richard Russell in what NPR's Ann Powers describes as less elegiac than "another step in the fascinating dance of someone who will keep kicking until he can kick no more."

Powers recommends that "anyone who discovers Womack through this fresh start should go back and explore his many other lives and resurrections; one of American music's feistiest survivors, he's brought the world plenty of trouble and delight."

I would start off with Womack's 1968 cover of The Mamas & The Papas' California Dreamin':

Pitchfork has dug into the archives to "revisit some visual highlights from the man's 50-plus-year career."  Here's what they came up with:  (1) Communication, performed on Soul Train in 1971; (2) Across 110th Street, from 1972, heard here on the opening sequence of Quentin Tarantino's 1997 film Jackie Brown; (3) Lookin' For A Love, originally a hit in 1962 when Womack and his brothers were The Valentinos.  This version is from 1974, with three of his four brothers; (4) I Wish He Didn't Trust Me So Much, from 1985; and last, but definitely not least, (5) an acoustic version of (If You Don't Want My Love) Give It Back, a 1971 song performed with Gorillaz in 2010.

OK.  Now we're ready for the new one.

Friday, June 15, 2012


The Obama Administration's announcement that it will no longer deport young immigrants who came to the U.S. as children is not only good politics, but good policy.

As the New York Times reports:
The administration said the change will affect as many as 800,000 immigrants who have lived in fear of deportation. It bypasses Congress and partially achieves the goals of the "DREAM Act," legislation that would have provided a pathway to citizenship for young illegal immigrants who went to college or served in the military.
Under the administration plan, illegal immigrants will be able to avoid deportation if they can prove they were brought to the United States before they turned 16 and are younger than 30, have been in the country for at least five continuous years, have no criminal history, graduated from a U.S. high school or earned a GED or served in the military. They also can apply for a work permit that will be good for two years with no limits on how many times it can be renewed. 
Jed Lewison explains at Daily Kos that "unlike the DREAM Act, this move doesn't create a path to citizenship because that will require an act of Congress, but removing the threat of deportation from hundreds of thousands of law-abiding residents who came to America as children is still an important step towards achieving the goals of the DREAM Act."

Thomas A. Saenz, President and General Counsel at MALDEF issued the following statement:
Today’s bold Obama Administration announcement holds out the promise of significant, even transformative, benefit to the entire nation by ensuring that some of our most capable and committed young people are finally given the opportunity to work and to safely contribute to our economic competitiveness and our national development. Today’s announcement is the clear product of the hard work of those same DREAM students to enlighten the nation and its policymakers.
We look forward to swift, fair, and comprehensive nationwide implementation of the important administrative steps announced today on this thirtieth anniversary of the prescient Supreme Court decision in Plyler v. Doe, which established the importance to our national future of educating all students.
This administrative action is consistent with the DREAM Act, supported by a majority of both houses of Congress in 2010 but blocked only through a craven Senate exercise of the hoary power of filibuster. Congress should move swiftly to enact the DREAM Act as a longterm guarantee and protection of the powerful national resource embodied in the DREAM student population.
We also call upon Governor Mitt Romney to commit, if elected, to following the wise national policy announced today as a policy that is in the clear best interests of the entire nation.
And what does Romney have to say about this?  His typical obfuscation: "I think the action the president took today makes it more difficult to reach that long-term solution because an executive is of course a short-term matter. It can be reversed by subsequent presidents."   Of course, Romney won't say what his long-term solution is and when asked whether he would reverse Obama's new policy, he refused to answer.

Occupy Rio+20

By Marcia Ishii-Eiteman, cross-posted from PAN's website

Governments are gathering in Brazil, twenty years after the historic 1992 Earth Summit where nations around the world pledged to devote themselves to ending hunger and conserving the planet’s resources for future generations.

This week, governments gather once again, and food and agriculture are high on the agenda of “Rio+20.” Global leaders will be discussing which way forward to feed the world amidst growing food, climate and water crises. Monsanto & Co. have geared up with slick websites and sound bytes — to the point where some have dubbed the official meeting “Greenwash +20.” But the good news is that people around the world are mobilizing like never before for a new food system.

What, GE won’t feed the world?! 

The first Rio gathering in 1992 marked an important historical moment when nations came together with inspiring goals and commitments to keep our planet from going off the rails and to save and replenish the ecosystems that are required for life to continue. But 20 years on, the report card on progress is bleak, and tragically, this meeting (like Copenhagen and too many others) promises more hot air and no progress.

Of profound concern is the undue influence exerted by multinational corporations who have entered the “sustainability” and “green” debate with predictable zeal. The recently released report Greenwash +20 documents how multinational corporate interests thwart government action toward real sustainable development. In food and agriculture, the report exposes the Big 6 player Syngenta, in particular, for its role in suppressing science, influencing the public conversation to bolster profits, and shadow-writing public policy.

Despite the best attempts of the Big 6 pesticide/biotech companies to persuade us that their toxic chemicals and expensive patented seeds are needed, here’s the real deal: GE crops haven’t delivered on 20 years of empty promises. No yield gains, no drought-tolerance, no nutritional improvement.

Rather, farmers signing contracts with Big 6 players have lost their land and their right to save and exchange seed, have fallen deeper into debt, seen their communities wither, stores shuttered, schools closed...The greatest benefits from the sale of GE seeds and the pesticides that go with them have consistently accrued to their manufacturers, companies like Monsanto which more than doubled its profits at the height of the global food price crisis of 2008. We know this to be true from the words of farmers — whether in Iowa or India — and from the hard facts presented to us by independent scientists.

People Power

The heartening news is that farmers and scientists around the world know better than to believe the Biotech Brigade. From Berkeley to Brazil, there is incredible momentum gathering like never before to democratize our food system. This momentum is manifested in the thousands of people gathering at the People’s Summit in Rio. Here peasant farmers, community and social movement leaders, policy advocates, researchers and academics are sharing their knowledge and stories of how communities and entire nations are building strong and vibrant local and regional food systems without buying into corporate dependency.

This “unofficial” meeting, already going on, is where the smarts and solutions lie. Two full days will be dedicated to agroecology and the science and organizing required to build an ecologically sane and democratic food and farming system. While official meetings miles away in walled-off rooms promise entrenchment and false hope, the agroecology meeting has sparked the analysis and relationship-building needed to fuel our movement for change.

Here are some exciting products already coming out of Rio:
The global people’s gathering in Rio shows that there’s more movement than ever for Food Democracy. It’s up to us to create this change. Here are three ways to engage today:
  • Sign the statement from Occupy Rio+20.
  • Join PAN’s alert list, where you’ll get updates on how to take action for food democracy and a healthy planet. Right now, we’re supporting the brave Mothers of Argentina vs. Monsanto in our online action with the White House.
  • Play “Game Change Rio,” a game that raises awareness of the issues we’ll need to address if future generations are to enjoy life on this planet. (Demo video here).
As the leader of PAN’s Food Democracy campaign team, I’m thrilled by the public conversations taking place in Rio and the momentum powering social movements around the world. Join us.

Thursday, June 14, 2012

Stranger Than Fiction: R.A. Dickey Is One Of The Top Pitchers In Baseball

Matt Cain, the great Giants pitcher, threw the 22nd perfect game in baseball history last night, the first ever for a Giant.  And then there is R.A. Dickey of the Mets who, but for a scorekeeper's call, may have thrown a no-hitter himself.  In the first inning the Rays' B.J. Upton hit the ball to third which David Wright tried to snag bare-handed and muffed.  It was scored a hit and proved to be the only hit Dickey gave up.  Wright's throwing error in the ninth and a couple of passed balls by the catcher led to an unearned run, the first run Dickey has given up in 32 2/3 innings, a Met record, by the way.

Dickey is now tied for the most wins in the Majors with 10, and is near the top in virtually every pitching category.  Although he throws almost 30 miles per hour slower than Justin Verlander, he is just as dominant.

Dickey, now 37 years old, is not your typical ace pitcher.  After he was drafted by the Texas Rangers in 1996, was it discovered that he was missing the ulnar collateral ligament in his pitching arm.  A mediocre pitcher with unconventional stuff, he developed a knuckleball, with which he finally gained some modicum of success as a Met over the last couple of years.

Even before this year Dickey endeared himself to Met fans with his intensity and his quirkiness (he is an avid reader and keeps a stack of books in the dugout) and by his fairly decent playing for a pretty dismal team (winning 11 games in 2010 and pitching well last year despite an 8-13 losing record.) 

He has also written a remarkably courageous book, Wherever I Wind Up, in which he discusses not only his baseball career and the knuckleball, but his painful and traumatic childhood during which he was sexually abused.

Over the winter, after Dickey climbed Mt. Kilimanjaro for charity (seriously) I wrote with only a little bit of irony that this would probably be the highlight of the Mets' season.  (See Dickey Reaches Peak of His Game.)  But not only are the Mets playing surprisingly well this year, R.A. Dickey truly is reaching new heights.

Why Are We Spending So Much To Lock Up Elderly Prisoners Who Pose Little Threat?

By Inimai M. Chettiar and Vanita Gupta, cross-posted from American Constitution Society

Elderly prisoners are the least dangerous group of people behind bars but the most expensive to incarcerate. Yet despite this truth, the number of elderly prisoners is skyrocketing. Harsher sentencesfor less serious crimes – one defining characteristic of our failed “tough on crime” and “war on drugs” policies – are responsible for this staggering increase in the number of older prisoners, and taxpayers are taking the hit.

You may be shocked to learn how much money states are dumping into housing aging prisoners who pose little safety risk. Today the American Civil Liberties Union released a report, “At America’s Expense: The Mass Incarceration of the Elderly,” which details the growth of our aging prisoner population, the low public safety threat elderly prisoners pose and the fiscal impact of incarcerating them. Strikingly, the report estimates that the average aging prisoner costs taxpayers about twice as much as the average prisoner.

The report is co-authored by the ACLU’s fiscal policy analyst and in-house economist, Will Bunting. He conducted a fiscal impact analysis, weighing the cost of incarcerating the average aging prisoner against the burden releasing that same prisoner would impose on public benefit programs. Even taking into consideration the cost of state payments for Medicaid, supplemental security food stamps, energy assistance, and other public assistance benefits, the report estimates that states could save $66,000 per year for each aging person released from prison. To put this number in context, the average American household makes $40,000. The money thus saved could be redistributed to more worthwhile and cost-effective state goals like education and infrastructure.

A look at the grander scheme of things is even more startling: in 1988, the United States spent about $11 billion on the entire corrections system. Today, we spend about $16 billion annually on the aging prisoner population alone.

As the number of prisoners in the United States climbs ever higher, the number of aging prisoners is climbing even faster. Between 1980 and 2010, the total number of people incarcerated in this country grew by 400 percent. In that same timespan, the population of prisoners age 55 and older grew by nearly 1,400 percent. At the current rate of growth, the number of prisoners age 55 and older will have increased 4,400 percent from 1981 to 2030 and will make up fully a third of the nation’s prison population.

The increase in the number of aging prisoners is not due to a spike in the number of crimes committed by older people. There is no “elderly crime wave.” And contrary to popular belief, older prisoners aren’t more likely to have committed a serious crime. Rather, many elderly prisoners are incarcerated for crimes committed in their youth for which they received disproportionately long sentences, and many elderly prisoners are in prison for nonviolent crimes. The current mentality of “lock ‘em up and throw away the key” has led lawmakers to impose exceedingly harsh penalties on individuals who commit low-level offenses, ensuring that they stay behind bars well into age and often until they die. The adage “let the punishment fit the crime” has given way to a reign of disproportionality in sentencing that is nothing if not cruel and unnecessary.

For instance, in California, Leandro Andrade, a father of three, received a mandatory sentence of 25 years to life in prison for two counts of shoplifting children’s videotapes valued at $153. He had two prior offenses for misdemeanors. In Mississippi, Atiba Parker was sentenced as a habitual offender to a total of 42 years in prison for selling a total of .3 grams and possessing less than .1 grams of crack cocaine. And also in Mississippi, the now-famous Scott sisters, Jamie and Gladys, were sentenced to two consecutive life terms for a robbery in which they stole $11 when they were teenagers.

Like many aging prisoners, Andrade, Parker and the Scott sisters are caught in the net of our extreme sentencing laws enacted since the mid 70’s. Politicians over the last quarter-century have held strong to the conventional wisdom that being "tough on crime" will win elections and appease the public's appetite for safety. To alleviate the public's overblown fear, or even to slake a thirst for retribution, our lawmakers have increasingly deemed more private acts criminal and doled out harsher punishments for a generation. Law enforcement has selectively enforced these laws against the "feared" Black and brown communities. In the end, we’re left with a massive, unsustainable prison population – and equally unsustainable aging prison population – unlike anything the world has ever seen.

If aging prisoners posed a serious threat to public safety, the costs of incarcerating them might be justified. But aging prisoners are in fact highly unlikely to commit new crimes upon release. Research has conclusively shown that by age 50 most people have significantly outlived the years in which they are most likely to commit crimes. For example, arrest rates drop to just over 2 percent at age 50 and are almost nil at age 65. In other words, there is no value to the continued incarceration of a large majority of our aging prisoners.

Today’s report provides a number of recommendations to legislators and correctional leaders interested in meaningful reform. Given the fact that public opinion is shifting toward a desire for fewer people in prison, the time to implement these reforms is now. The longer term solution requires political will to redesign our extreme sentencing regime to reintroduce proportionality, and repeal or reform habitual offender, mandatory minimum and truth-in-sentencing laws. A more immediate recommendation is for states to empower parole boards to determine which aging prisoners are worth the cost of continued incarceration because they pose grave public safety threats and which are not and can be safely released. In 2011, a bipartisan coalition in Louisiana passed just such a reform measure; if Louisiana – which leads the nation in incarceration – can take these steps, other states can surely follow suit.

In today’s hobbled economy, legislators cannot continue wasting taxpayer dollars by turning our prison system into a vast complex of nursing homes. It is a moral and fiscal imperative to stem the explosion in the aging prisoner population. Aging prisoners pose little threat to the public’s safety and incarcerating them is breaking our collective bank. Furthermore, it is inhumane to keep people locked up when there is no compelling societal justification to do so. The tools for grappling with this crisis are well within reach of legislators around the nation and the time for reform has arrived.

Inimai M. Chettiar, Policy Counsel, and Vanita Gupta, Deputy Legal Director, at the American Civil Liberties Union. Ms. Gupta directs the ACLU’s Center for Justice and its Safe and Fair Initiative to End Overincarceration. Ms. Chettiar serves as national legislative counsel coordinating the Initiative, and is incoming Director of the Justice Program at the Brennan Center for Justice at NYU School of Law.