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Biden is the president liberal court watchers have been waiting for, but he may be five years too late.
Joe Biden probably knows more about picking judges than any new president in American history.
A longtime member and former chair of the Senate Judiciary Committee, Biden oversaw hundreds of judicial confirmations. He chaired the 1987 hearing that successfully convinced the Senate to reject Judge Robert Bork’s nomination to the Supreme Court; then presided over a far less successful hearing that preceded Justice Clarence Thomas’s confirmation in 1991.
As president, he’s approached judicial selection with a seriousness of purpose that hasn’t been seen in a Democratic White House since at least the Carter administration. With eight Biden judges currently sitting on the federal bench, including three court of appeals judges, Biden’s appointed more judges at this point in his presidency than any newly elected president since Richard Nixon.
Biden’s nominated 22 more, and he has the potential to shape much of the federal bench very rapidly. Currently, there are 82 vacancies throughout the federal judiciary, nearly 10 percent of the bench, although most of these vacancies are on relatively low-ranking district courts.
When I speak with liberal advocates jaded by years of failed efforts to get Democrats — including the Obama White House — to take judicial appointments as seriously as Republicans, their attitudes toward Biden range from measured enthusiasm to something approaching ecstasy. Though Biden received some criticism from his left for nominating two management-side employment lawyers to vacant seats in New Jersey, nearly all of the advocates that I spoke with were thrilled with Biden’s overall record on judicial nominations.
Former Wisconsin Sen. Russ Feingold, who now leads the liberal American Constitution Society, told me that Biden’s judicial confirmation efforts are off to a “tremendous start.” Daniel Goldberg of the Alliance for Justice, an organization that spent the Trump years producing research memos warning about the former president’s nominees, summarized his opinion of Biden’s approach to judges in a single word: “outstanding.”
And yet, while liberal veterans of the judicial wars now have the president many of them have hoped for their entire career, Biden may have arrived five years too late. The sad reality for the new president is that he’s likely to need every ounce of political skill and institutional knowledge that he gained after decades of confirming judges to pull the judiciary back from where his predecessor left it. And he may still fail to do so.
Biden had been president less than a week when the first Trump judge handed down a decision sabotaging one of his policies. The judge was Drew Tipton, a federal judge in Texas with only a few months of experience on the bench, and the sabotaged policy was a 100-day pause on deportations that the administration announced on Biden’s first day in office.
Tipton’s opinion explaining why he blocked the deportation moratorium flouted decades of precedent. And Tipton has hardly been the only judge to behave this way during Biden’s still-young presidency.
J. Campbell Barker, another Trump judge in Texas, handed down a decision in February that, if taken seriously, could strip the federal government of its power to regulate the national housing market. In July, Judge Andrew Hanen, a judge whose nativist inclinations are so widely known that anti-immigrant plaintiffs seek out his courtroom to ensure they will receive a sympathetic hearing, struck down the Deferred Action for Childhood Arrivals (DACA) program that allows hundreds of thousands of immigrants to remain in the country.
The Supreme Court spent the first days of summer busting unions, protecting conservative political donors, and gutting the Voting Rights Act. The Court also spent the last couple of years laying the groundwork to strip the Biden administration of much of its power to regulate the workplace, expand access to health care, and protect the environment.
President Biden, in other words, began his presidency deep in a hole. He faces a 6-3 conservative Supreme Court, and dozens of Trump’s lower court judges eager to make a name for themselves (and potentially score a promotion in a future Republican administration) by undercutting Democratic policies. He is the heir to an Obama administration that, at least early on, treated judicial confirmations as an annoying distraction from other business, and to a Trump administration that treated the judiciary as its most lasting legacy.
And that legacy could include disrupting Biden’s entire presidency.
President Barack Obama’s judicial nominees faced several structural obstacles that do not hinder Biden’s. When Obama took office, the filibuster enabled Republicans to block any nominee who didn’t have supermajority support in the Senate, and it enabled the GOP to slow the Senate’s business to an excruciating crawl even when Democrats did have the 60 votes necessary to break a filibuster.
The Senate changed these rules to allow judges to be confirmed by a simple majority, and to limit the minority party’s power to delay most confirmation votes.
Then-Senate Judiciary Chair Patrick Leahy (D-VT) — like so many other Democrats who cling to their own idiosyncratic notions of how institutions should function at the expense of governance — insisted on giving Republican senators veto power over anyone nominated to a federal judicial vacancy in their state by taking an unusually expansive view of a Senate tradition known as the “blue slip.” The current chair, Sen. Dick Durbin (D-IL), will not allow Republicans to veto at least some of Biden’s nominees, especially his nominees to powerful appellate courts.
Obama also had to fill a Supreme Court vacancy in his first year, which made it difficult for the White House or the Senate to pay as much attention to lower court nominees.
But even if Obama was dealt a more difficult hand on judicial confirmations than Biden, he played that hand terribly.
At least in the first year of his presidency, Obama staffed his White House with senior officials who either treated the process of shepherding judges to confirmation as a chore, or who lacked experience with judicial politics.
Rahm Emanuel, Obama’s first chief of staff, reportedly told a room full of activists that he didn’t “give a fuck about judicial appointments.” Greg Craig, Obama’s first White House counsel, was a former State Department official who showed more interest in Obama’s worthy, but failed, effort to close the prison at Guantanamo Bay than in choosing judges.
Obama, meanwhile, prevailed on Craig to hire Cassandra Butts, a personal friend and law school classmate of Obama’s with a distinguished career on Capitol Hill and in left-of-center politics. (Disclosure: In 2015, I interned on the Center for American Progress’s domestic policy team, which Butts led.) Craig made her his deputy overseeing judicial nominations.
Yet, while Butts was undoubtedly qualified to work in the White House, she had limited experience working in judicial politics. And her legislative background also fit in poorly in a White House counsel’s office that placed credentials such as a Supreme Court clerkship or practice at a white-shoe law firm on a pedestal. That appears to have diminished her influence.
The result of this mix of inexperience and indifference is that the early Obama White House was often slow to nominate judges. And it stumbled into traps that aides more familiar with judicial politics might have avoided.
Here’s an example: About two months into Obama’s presidency, the White House announced that it would nominate Indiana federal trial Judge David Hamilton to a seat on the United States Court of Appeals for the Seventh Circuit. Hamilton was Obama’s first judicial nominee, and the president intended to use Hamilton’s nomination to extend an olive branch to Republicans.
The New York Times described Hamilton as someone “who is said by lawyers to represent some of his state’s traditionally moderate strain.” And Hamilton enjoyed the support of his home-state Republican Sen. Richard Lugar.
But, if the Obama White House had paid more attention to Hamilton’s record as a federal district judge, they would have known that he was not the sort of judge who could be sold to Republicans as a peace offering.
Among other things, Hamilton blocked an Indiana law that effectively required most abortion patients to make two trips to a clinic before they could have an abortion. And he handed down a pair of religious freedom decisions that seemed designed to enrage Republican culture warriors. The first held that a state legislature could not open its session with a prayer to “Jesus,” because such a prayer preferences Christianity over other faiths. The second opinion explained that a prayer to “Allah” could be a permissible non-sectarian prayer, because “Allah” is merely the Arabic word for “God.”
The point is not that Hamilton was wrong in any of these decisions, or that he should not have been confirmed to the Seventh Circuit. Hamilton is an excellent judge, and the rule of law depends on judges who are willing to hand down decisions that may make them unpopular. But a White House staffed with veterans of past judicial confirmation fights would have understood that a judge with Hamilton’s record on abortion and religion would trigger significant opposition from Republicans.
And trigger it he did. Republicans filibustered his nomination. When Hamilton was eventually confirmed, every Republican senator except for Lugar opposed him.
Though Obama’s judicial confirmations effort grew more sophisticated later in his presidency, it never fully recovered from its early missteps. In eight years as president, Obama appointed only 55 federal appellate judges — just one more than Trump appointed in only four years in the White House.
The charitable interpretation of the Obama White House’s early missteps is that it had a lot on its plate. It was trying to dig the nation out of a catastrophic recession, and didn’t want to get bogged down in fights over judges. As Feingold told me, judicial nominations “got put on the back burner” during much of Obama’s presidency.
But President Biden faces at least as many challenges as Obama did during his first term in office. Biden also is trying to revive a stalled economy, and he’s doing so as the world seeks to curb what is hopefully a once-in-a-century pandemic. Plus, Biden faces an opposition party that increasingly views Democrats as illegitimate. Republicans worked hard to undermine Obama’s policy agenda, but even the Obama-era Republican Party didn’t try to sabotage an investigation into a violent attempt to overthrow the United States government and install Donald Trump as president.
And yet, with so many crises to confront at once, Biden has still confirmed more judges this early in his presidency than any other chief executive in the past half-century. He’s hired senior staff who understand judicial politics and take confirming judges very seriously. It is “clear that the White House counsel’s office and the Oval Office consider this a high priority,” said Feingold.
“Having [White House Chief of Staff] Ron Klain in the White House has been about the best thing we could have hoped for when it comes to judicial nominations,” according to Molly Coleman of the People’s Parity Project, a group that organizes law students and young lawyers to “unrig the legal system and build a justice system that values people over profits.”
Klain oversaw President Bill Clinton’s judicial nominations efforts, including the confirmation of the late Justice Ruth Bader Ginsburg. Coleman told me that, when she took a course from Klain as a law student, it was clear that the future chief of staff “took pride” in the time he spent ushering Clinton’s nominees onto the bench.
He’s a far cry, in other words, from Rahm Emanuel. Klain has been one of the White House’s biggest cheerleaders for judicial confirmations.
With the confirmation of Judge Griggsby, @POTUS has now had more judges confirmed to the federal bench before July 1, then any President in the past 50 years! https://t.co/isXGhntLI4
— Ronald Klain (@WHCOS) June 16, 2021
White House counsel Dana Remus reached out to Democratic senators a month before Biden was president to enlist their local expertise in the often-arduous process of identifying judicial nominees from individual states. And the Biden White House also hired Paige Herwig, a former Senate Judiciary Committee staffer who also worked for the liberal judicial group Demand Justice, to oversee judicial nominations.
This is a team that knows what it is doing in picking and confirming judges.
When I spoke to liberal legal groups in 2020, I consistently heard that they had two requests from a Democratic White House regarding judges. They wanted nominees who were demographically diverse, but they also wanted nominees who had a diversity of experience working to benefit the least fortunate. A frequent complaint about President Obama was that he nominated too many partners at corporate law firms, and that he nominated too many prosecutors and not enough civil rights lawyers or public defenders.
Biden’s transition team signaled that he would meet these requests a month before he took office. In a December 2020 letter to Democratic senators, Remus told those lawmakers that “with respect to U.S. District Court positions, we are particularly focused on nominating individuals whose legal experiences have been historically underrepresented on the federal bench, including those who are public defenders, civil rights and legal aid attorneys, and those who represent Americans in every walk of life.”
Thus far, the Biden White House has delivered on its goal of appointing judges from diverse backgrounds. One of Biden’s first judicial appointments was Judge Zahid Quraishi, the first Muslim American to serve on the federal bench. In all of American history, only 11 Black women have served on a United States Court of Appeals. Three of them — Judges Ketanji Brown Jackson, Candace Jackson-Akiwumi, and Tiffany Cunningham — were appointed by Biden in the last six months.
Both Judges Jackson and Jackson-Akiwumi, moreover, are former public defenders, as is Eunice Lee, a Biden nominee to the Second Circuit. Myrna Pérez, another Biden nominee to that court, directs the voting rights project at the Brennan Center for Justice. Jennifer Sung, a Biden nominee to the Ninth Circuit, is a former union organizer and union-side litigator.
“People who in the past couldn’t even contemplate being judges” are now being nominated, Goldberg from the Alliance for Justice told me. In many cases (though not in every case), Biden is passing over the sort of high-dollar lawyers who are most likely to be politically connected in favor of more service-focused attorneys.
At least at the appellate level, moreover, the typical Biden nominee is someone who chose to spend much of their pre-judicial career in public service, despite having the sort of credentials that could have set them up for a much more lucrative career. Jackson, Jackson- Akiwumi, Lee, Pérez, and Sung all clerked for a federal appellate judge — an elite credential that is normally reserved for the most high-performing young lawyers — and Jackson also clerked for Supreme Court Justice Stephen Breyer.
And yet, for all of his early successes, it remains to be seen whether Biden can keep up the pace.
One other thing that unites Biden’s nominees is that they largely hail from blue states with two Democratic senators. These are the easiest vacancies for a Democratic president to fill because allied lawmakers are more likely to cooperate with Biden in identifying potential nominees. But it’s also because of the legacy of an old patronage system that still gives senators outsized influence over nominees from their state.
Before the Jimmy Carter administration, the White House typically gave enormous deference to home-state senators when choosing federal judges — indeed, the Senate Judiciary Committee would often refuse to hold a hearing on a nominee if the president tried to appoint someone other than the choice of the nominee’s home-state senator. President Carter weakened senators’ roles by setting up a now-defunct merit selection commission to select court of appeals judges, but senators continue to play an outsized role in choosing trial judges even to this day.
The primary mechanism for maintaining this patronage system is the “blue slip,” named after the blue pieces of paper home-state senators use to indicate whether they approve of a nominee. Under Sen. Leahy, home-state senators were allowed to veto any nominee to a federal judgeship in their state. But the committee’s current practice is to only allow senators to veto district judges, the lowest rank of federal judges who receive lifetime appointments.
But even a limited blue slip rule presents problems for Biden. It’s hard to imagine that senators like Josh Hawley (R-MO), who threw a fist up in solidarity with the protesters that later attacked the US Capitol in a failed effort to overturn Biden’s election, would consent to anyone nominated by Biden. And even many Republican senators who accept the results of the 2020 election are likely to prefer leaving an open judicial seat vacant to filling it with a Biden nominee.
Currently, there are vacant seats in Texas, Ohio, Indiana, Wisconsin, Oklahoma, Alabama, and Florida, all of which have at least one Republican senator. Ultimately, it will be up to Senate Judiciary Chair Durbin to decide whether Republican senators should be allowed to veto nominees when they have no intention of letting Biden confirm anyone to a vacant seat.
A potentially even more difficult political problem for Biden is what he should do about Democratic senators who drag their feet when the White House seeks their input on potential nominees in their state. Or if they offer recommendations that do not comport with Biden’s values. Biden could simply go around such senators, but doing so carries its own risks. Especially in a Senate where Democrats enjoy the narrowest possible majority, there are obvious reasons why the White House may be reluctant to anger a Democratic senator.
There’s also a final, more pragmatic reason why the White House may prefer to work with home-state senators if they can. Senators are more likely to be familiar with the lawyers in their state than the president and his aides, and thus may be able to suggest outstanding candidates who would otherwise be overlooked.
There are potential workarounds if a senator refuses to provide such input — Zahra Mion with the NAACP Legal Defense and Education Fund told me that “in Florida we’ve already seen some state legislative members set up commissions” to identify potential nominees, for example. But, because senators have historically advised presidents on judicial nominations, a senator is more likely to have already set up such a commission and established the relationships with their state bar that would allow them to provide good advice.
The elephant looming over Biden’s effort to shape the bench is that there’s always a degree of randomness to judicial selection. Biden — and liberal democracy more broadly — would stand on much stronger footing if Supreme Court Justice Ginsburg had lived just a few months longer, allowing Biden to choose her successor. And Justice Stephen Breyer’s decision to hold onto his seat, during what could be a very brief window in which Democrats control the Senate, could easily end in disaster for both the Democratic Party and democracy itself.
“The conventional wisdom,” Coleman, with the People’s Parity Project, told me, “is that we don’t have the full four years to get nominees confirmed. We have until the midterms.” And even that might be optimistic. If Republicans regain control of the Senate — either through an election or through the death or departure of a Democratic senator — GOP Leader Mitch McConnell is likely to impose the same near-total blockade on Biden’s Supreme Court and appellate nominees that he imposed on Obama when McConnell had the power to do so.
McConnell has already suggested that no Biden Supreme Court nominee will be confirmed if Republicans take control of the Senate.
The other potential catastrophe looming over the Biden White House is what happens if the Supreme Court goes rogue, invalidating Biden’s policies on the flimsiest legal arguments, or even permitting Republican state lawmakers to rig elections outright? Biden’s signaled that he’s not willing to add seats to the Supreme Court to ward off this problem, and it’s unlikely that Biden could get such a bill through Congress if he changes his mind. So his influence over the judiciary will ultimately be shaped by which judges leave the bench during his time in office.
Biden will need more than just a lifetime of experience confirming judges if he hopes to reverse Trump’s impact on the judiciary. He’s also going to need a lot of luck.
Japan’s pandemic problems are bigger than the Olympics, experts say.
The Toyko Olympics appear unlikely to be a “superspreader” event, experts say — but that may be little comfort to people in Japan, where a combination of the delta variant and low vaccination rates is driving a new surge in Covid-19 cases.
Japan is currently living through its fifth wave since the start of the pandemic, while the Summer Olympics are finally being held after a one-year delay. The average number of daily new cases jumped from 1,400 in late June up to more than 5,700 as of July 29, nearly matching the previous peaks in May and January.
Those rising rates likely reflect a new wave of cases around the world, and in Asia especially, rather than anything specific to the Olympics. In fact, adjusted for population, Japan’s latest wave tracks quite closely with new cases across Asia. The infections currently being reported were also contracted up to two weeks ago, before the start of the Games, though personnel had begun to arrive.
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Our World In Data
“I think what is going on in Japan right now is more reflective of the global picture of increased case numbers,” Andrew Nelson, a University of Minnesota pathologist who contributed to a CDC study on the Sturgis motorcycle rally told me in an email. “Related in part to the delta variant and importantly related to rates of vaccination in specific locales.”
The August 2020 rally in Sturgis, South Dakota, is generally thought of as an example of a superspreader event. It drew 460,000 people from around the US, and the CDC’s study linked it directly to clusters of cases in neighboring Minnesota, an example of how the rallygoers may have spread the virus elsewhere. But superspreader events are hard to quantify or define. Some experts have questioned how much we should focus on them, worrying they may distract from the many different ways Covid-19 spreads. Nelson called the term “problematic.”
And for the Olympics to actually become a quote- unquote superspreader event, a few things would have to go wrong. That’s not impossible, but it seems unlikely at the moment.
With the Olympics underway, Japan has administered about 81 million shots, enough for roughly one-third of its people. That puts the country well behind the United States, the United Kingdom, Germany, and other wealthy nations in its vaccination drive. Japan is currently averaging about 1 million shots per day; at that pace, it would take another 4 months to reach 75 percent of the population, according to the Bloomberg vaccine tracker.
In the meantime, the Olympic Games probably don’t pose much of an additional threat to the rest of Japan, relative to the global trends they are already contending with.
The Olympians and people working at the Games have big advantages in reducing spread. Access is tightly regulated and tests are conducted regularly to catch cases early. The athletes themselves have high vaccination rates, with most teams reporting that 80 or 90 percent of participants got their shots.
An estimated 15,000 competitors are expected to stay in the Olympic Village at some point. Since July 1, 169 people affiliated with the Games have tested positive for Covid-19. No new cases were reported among athletes on Tuesday, even as Tokyo itself set a record for daily cases, one sign of disconnect with the surrounding area.
There is reason to be optimistic about the virus being contained at the Games themselves. A lot of precautions are being taken to do exactly that, starting with the public being barred from attending the events.
“Given the restrictions on movement, testing, masking, separation of the public from the official events, and other measures being taken, we can hope that any spread is limited somewhat,” Josh Michaud, associate director of global health policy at the Kaiser Family Foundation, said over email.
But the Games are still deeply unpopular with the Japanese public, surveys have found. People say they are worried about the effect on the current outbreak. And that worry isn’t necessarily unreasonable.
Even if the risk of the Olympics being a superspreader event is relatively low, that doesn’t mean it’s zero. As Wafaa El-Sadr, director of the Global Health Initiative at Columbia University’s Mailman School of Public Health, put it to me: “Any time there are large numbers of people coming and mixing together, there is reason for concern.”
The athletes are going to socialize. They are performing rigorous physical activity, often near one another, without masks. Some of them are still unvaccinated. Workers are also entering and leaving the grounds.
The theoretical risk from the Games to Toyko and Japan at large would be, for starters, a cluster of cases among a group of athletes or workers. That is one thing experts say they’ll be watching for. While the Olympics are being closely monitored for Covid-19, it’s still possible to imagine a scenario in which the virus leaks into the community, exacerbating the surge already underway. There could be indirect effects as well.
<img alt=" " src="https://cdn.vox-cdn.com/thumbor/DA-“Rates rising in Japan could also be impacted by the Games through more social mixing, bars and other venues being open, and essential workers having to increase front line and public facing work,” Chris Beyrer, a Johns Hopkins global health professor, said over email.
If rates increase in Japan more than would be expected from the delta variant alone, that would be an indicator the Games played a role.
Showing any direct link could be difficult, however, though Michaud said Japan has been “very good” with contact tracing so far. (He also pointed out that any spread associated with the Games would be “a politically sensitive issue,” which could hamper transparency.)
In the end, the experts I spoke with thought Japan’s lagging vaccination rates and the increased spread globally from the delta variant posed more of a risk to the nation than the Olympic Games.
“Given the infection control protocols in place around the Olympics and Japan in general,” Nelson said, “I think there is a very low probability that this observed increase is due to the Olympics and there is a very low probability that the Olympics will serve as a superspreader event.”
What’s not in doubt is that, as the rising cases in Japan already show, the coronavirus still poses a threat.
What Larry Krasner has learned about trying to reform policing from the inside.
I lived in Philadelphia for a long time, attending college at the University of Pennsylvania before returning years later. The city sits in a county where, politically speaking, the blue is drowning the red. Democrats outnumber Republican voters by three to one.
Still, it was noteworthy when Larry Krasner — perhaps the most famous of all the “progressive prosecutors” elected in recent years — all but ensured his reelection when he won the Democratic primary this past May. Krasner was first elected to the office of district attorney in 2017, and this most recent victory sent a strong signal that Philadelphia voters want his reformist work to continue.
It’s notable that voters overwhelmingly — by more than 30 percentage points — rejected the “tough-on-crime” narrative of his opponent, Carlos Vega. But how long will that hold?
Krasner sued the Philadelphia Police Department 75 times over more than three decades as a civil rights attorney. He’s been outspoken in his assertions that law enforcement is “systemically racist.”
Now, as district attorney, he’s trying to change that system from within. He’s drawn attention, most recently in a PBS documentary, for populating his team with criminologists and data scientists, for his efforts to end cash bail and reform the probation system, and his office’s attempts to reduce rates of incarceration, particularly among juveniles.
But when the goal is remaking something like Philadelphia’s entire legal system, how much can one person do?
You can hear our entire conversation (and there’s much more to it) in this week’s episode of Vox Conversations. A partial transcript, edited for length and clarity, follows. (Some of what you read below may not appear in the published podcast episode.)
Subscribe to Vox Conversations on Apple Podcasts, Google Podcasts, Spotify, Stitcher, or wherever you listen to podcasts.
My question may seem a little bit basic at the start here, but I think it’s kinda necessary for us to clarify this before we start delving into other topics: What does a district attorney do, specifically?
So a district attorney is a chief local prosecutor. District attorney signifies you’re not federal, you are at the state or county level. And you’re making decisions about whom to charge, what you should charge them with, and what you’re gonna do with that case.
It’s a position with a lot of power. And it’s a position that involves a lot of individual lives, not just defendants, but also people who’ve been victimized by crime and members of their family, neighbors, friends.
The decisions that a prosecutor makes have a profound effect on mass incarceration and how we spend our money. So in a sense, the chief prosecutor is there in court not only representing people who have a direct interest in the case but people who will never even hear of that case.
So knowing all that, in some respects, there’s just this culture of fear that some people — it could be police unions or political interests — have a vested interest in promoting. There was rising gun violence in Philadelphia last year, along with a lot of other cities, and there are people who are invested in blaming it on progressives wherever they sit, whether it be the DA’s office or city hall or what have you.
It’s the gift from Richard Nixon that just keeps on giving. This steady politics of fear, which in many ways is just code for historic and fundamental racism.
Last year, for example, we did have a historically terrible year in terms of gun violence, but crime across the country during the pandemic went down slightly. What we actually saw last year was not some form of lawlessness. What we saw was this massive surge in gun violence, a surge so massive that across the country in the 50 largest cities, the average increase was 42 percent. It was happening in cities with extremely hard-nosed Republican right-wing prosecutors’ offices, just like it was happening in cities where you had progressive prosecutors.
I consider myself to be a liberal, progressive person, but one thing the left doesn’t really talk about is that, you know, in Philly, they were only solving 20 percent of shootings before the pandemic. They were only solving something like 40 to 50 percent of homicides.
And that is something that is felt just as dearly by people living on a particular block as the unjust incarceration of an individual. There are a lot of people in poor Black and brown neighborhoods who feel unsafe, unsafe from gun crime, but also unsafe from what police and prosecutors have been doing to them for decades. And they’re right. They’re right on both of them.
During your long career as a civil rights lawyer, more or less you’ve stood against the carceral state. But I understand that the number of people jailed in Philadelphia has increased by 30 percent just in the last year. What exactly is behind that?
So this is a city where, not so many years ago, there were 15,000 people in county custody. By the time I took office, there had been some good efforts to reduce it. When I took office in January 2018, we had 6,500. That number was down to about 4,800 before the pandemic hit.
The pandemic hits, and we and other criminal justice partners, including the public defender’s office, we make very concerted efforts to reduce the jail population even further, so it won’t become a superspreader. And we got those levels down to 3,800, the lowest level of incarceration in Philly since 1985.
But we were up against a pretty big challenge, which is that the courts closed. We do not determine who is in jail or who is not in jail. So even though we got down to this unprecedented low, I shouldn’t say unprecedented, but lowest since ‘85, we started to see it climbing back up.
Let me rephrase that earlier question: What can’t a district attorney do?
It’s a lot of power, but it’s also limited in other ways.
For example, I would love to get rid of cash bail. I think it’s an awful system. I think if you’re so dangerous that you should not be on the street while you’re awaiting trial, then you should be held. But I also think if the matter is not serious, you don’t pose a serious danger to the community. Then I don’t really care if it’s your fifth retail theft for food, you should be out.
And what we have happening under cash bail is that poor people cannot pay a low bail and get out, so they sit in jail with all the negative consequences that come from that. We’ve tried to do as much as we can within the law, but I can’t change the law.
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Mark Makela/Getty Images
You had said around the time the pandemic began spreading in this country, that you would try to simulate a no-cash bail system. Can you describe what you were trying to do and how effective you think it’s been?
Sure. Early in our administration was kind of a “phase one”; we found a lot of low-level offenses where we would never seek money. That was constructive and positive; it resulted in fewer poor people being stuck in jail for minor offenses.
Pandemic hits, and now we have this double crisis: We’re not just talking about public safety; we’re also now talking about a fatal disease that can affect people in custody, can affect everyone who comes in and out of that carceral facility. So you’re talking about prison psychologists, social workers, correctional officers, and every elderly relative they have at home.
Under those circumstances, we decided that the most we could do under Pennsylvania law was to ask on the one hand for no cash at all and on the other hand for a large amount of cash. That large amount was $1 less than a million for a specialized reason, which is that within the county correctional facilities, there was a rule: If bail was a million dollars, you had to be held in this very secure way that made it hard for the commissioner of our correctional facilities to socially distance people. The number was the best simulation of hold without bail that we could get, which would not also tie the hands of the person in charge of the jails.
It both succeeded tremendously and failed tremendously. A lot of the bail commissioners and a lot of the judges during the pandemic were very sympathetic to the idea that in order to protect everyone, we needed to let those people out of jail. So that worked very well.
At the upper end, where we were seeing someone who we believe had probable cause to have shot someone else, we’re going in. We’re asking for a dollar less than a million dollars bail to make sure they’re held, and we have judges who were used to giving $100,000 bail, $150,000 bail, $200,000 bail, and they didn’t wanna hear it. They really did not want to hear from us, that it should be higher than that. It has been a source of a lot of frustration both inside and outside the office.
Gun violence has been one of the main topics of conversation of anyone talking jurisprudence throughout the country. In the last two years that you’ve been district attorney, you’ve gotten to see from the inside how the system operates. What do you feel like are the best solutions, and what’s standing in the way of those solutions?
We have a really interesting crew here that never existed in this DA’s office before, headed by a criminologist and some data people, and when they geo map, this is what you see: The map of poverty is the map of unemployment, is the map of educational low achievement, is the map of mass incarceration, is the map of violent crime. It’s all the same map.
And Philadelphia is the poorest of the 10 largest cities. So I think, maybe more than some other cities, we very directly see the connection between poverty and everything that goes with it, and the persistence of violent crime.
There is no question that in medicine the biggest solutions are preventative. They avoid the harm in the first place. And the secondary solutions are, you know, the surgery. It’s the prosecution after the arrests because the blood is already on the ground and someone has been killed. There’s no question that prevention is where the biggest investment should be, and that’s not where we’ve been, as a country or as a city.
Your primary victory offers us the chance to look forward to the next four years. Criticism has been levied about the fact that it’s more disproportionately Black and brown people who are incarcerated than before. I just wanted to know what you feel about those particular criticisms and, knowing the powers of the district attorney’s office, what your capability is to address those concerns.
Some of what we’re seeing now is unique to a pandemic. We never had a situation, during my career, where the Philly courts were closed more than four or five days because of snow. We have had the Philly courts essentially closed for 15 months, so I don’t think we should read too much into the moment. But how can we improve things?
Once we get the courts running again, we can get back to a lot of policies that were making good headway. We can get back to policies of not prosecuting people for sex work. Not prosecuting people for possession of marijuana. At many different levels, we can advocate for the kinds of legislation that we need to do things like get rid of cash bail. We can advocate for sensible legislation around elimination of the death penalty in Pennsylvania. We can work on the vast enhancement of diversion because the consequences of conviction are so stark in terms of disabling someone from participating in the economy.
So we have plenty to do, and we have people in the office who are very energetic and excited; that’s part of it. We’re not the movement. We don’t lead the movement, but we are technicians for it.
One of the biggest challenges we face is that people believe it’s impossible. You know, the system has convinced them that it’s impossible. You have to be truly extraordinary. You have to be exceptional. No, you don’t. You really don’t, you know. While we are well-intended, we are not perfect people; we are not even really extraordinary people. You can be an ordinary person. You can get inside of a monster like this, and you can make some real improvements with it. And you can also fail and get up the next day and keep trying.
What’s the impediment for you to sell people on working within the system to change the system, to sell especially Black Philadelphians, who continue to experience a disproportionate amount of the violence that the police department perpetuates?
Philly is the city that bombed itself, as you know. How do you tell people who have been subjected to that that they should trust police or trust prosecutors? One way is that when you find innocent people sitting in jail, you get them out. And there have been some moderate, positive steps forward in Philadelphia.
We started a conviction integrity unit that at this point has released 20 people from jail on a total of 21 cases. One of them had two cases that should not have been convicted the way they were convicted. And the vast majority of them are clearly and absolutely and without question innocent of the crimes with which they were charged in the first place.
If we look at the phenomenon of a grassroots movement for criminal justice reform electing progressive prosecutors, what we see is that right now 10 percent of the United States has done exactly that, and often in the biggest jurisdictions, the jurisdictions that control mass incarceration to some extent.
Certainly, the thinking around this has been going on much longer, but all of those electoral victories are telling us something, and people who wanna run for mayor or who are mayors better pay attention, because it’s real and it’s coming. I think what these victories establish all over the country is that change is possible; it’s okay to do things that feel like an experiment.
I think of people wearing the progressive label without actually putting that into their policies. I think about Ellen Rosenblum up in Oregon, who after the Supreme Court verdict on nonunanimous jury verdicts has the power to do something about that. The fact that they’re not applying that retroactively to people who’ve already been sentenced astounds me.
What do you think about that particular Supreme Court case and sort of living up to that label?
We have to acknowledge and accept that there is a variety of thought within a group of people who are trying to be modern, who are trying to be de-carceral. We may not all agree on certain things, and that’s okay. But it’s not okay to be a wolf in sheep’s clothing.
I think that one of the ways that we can really move forward is to recognize that often the law, when it comes to justice in the United States, is a floor — but it’s not the ceiling. And even where the law provides these sort of minimal protections, often prosecutors have the discretion to require more.
And we can make decisions on things that are categorical. Like there are certain things I’m just not gonna charge; there are mandatories I’m just not gonna pursue because I think judges should actually have the discretion to do what we elected them to do, to make decisions about individuals and individual cases.
People don’t walk into a courtroom after they’ve been involved in a fistfight — they don’t walk into that courtroom with a number on their forehead. There is no obvious proper number of months or years of jail or supervision for a fight that results in a broken jaw. It’s a serious offense that affected someone’s life seriously and should be taken in that context. But we need to be careful. It may be that a lot of 10-year sentences should be three, that a lot of two-year sentences could be probation.
I mean, we’re talking about setting some guidelines here, and this is something that we, as Americans, just kind of accept. Recklessly, what is the power of a district attorney to fix that? Beyond making sure that you don’t prosecute certain crimes?
Let me just digress for one second to tell you how stupid a lot of these sentencing guidelines are. The history of sentencing guidelines in Pennsylvania was that people thought consistency was nice. Some very rural counties were giving out different sentences than some very urban counties. You might only have one homicide in a decade in a particular county as opposed to a much larger number of homicides either in Pittsburgh or in Philadelphia.
So they did not come up with a system of sentencing guidelines that were based upon criminological data or recidivism statistics or anything else that might shed light. What they did is they averaged it, and guess what? This drives up the sentences you’re supposed to give in the big city, and it drives down the sentences you’re supposed to give in the smaller locations. The populations are in the big cities. The large number of cases are in the big cities. Very harmful stuff, very wasteful.
So what can I do? Well, No. 1, in many instances, I don’t have to pursue a mandatory, so I don’t. In some instances, we have to make a charging decision about whether we’re gonna pursue a particular charge that has a drastic effect on the sentencing guidelines, and if we think it’s unjust and unfair to pursue that charge because it calls for some kind of ridiculously high, inappropriate sentence, then we can choose not to bring the higher charge.
We are strong believers in individual justice, and that means giving judges discretion and trying to get all the information you can, and trying to be as fair as you possibly can. I think that there are obviously some inconsistencies when you give more discretion to judges to make their own decisions. But I would rather have some inconsistency than a system that is predictably and consistently unjust, which is what we have with these three-strikes laws, mandatory sentencing laws, and a lot of the sentencing guidelines, provisions that are completely unscientific.
You’ve been characterized often as a radical. I saw that a lot in the articles that were concern-trolling about your potential doom in this primary. What do you think of that label, particularly within the context of what you’re trying to accomplish?
I don’t think there’s anything wrong with being a radical. But do I think it’s accurate? No. You know, this terrible radical voted for Joe Biden. Woohoo.
The radical experiment, in my mind, was mass incarceration, the venomous approach of Richard Nixon, the war on drugs, everything that came after. This essentially cloaked effort to go after anti-war protestors and to go after Black people. When you go from X number of people in jail to five-X people in jail within a few decades, what’s so radical about trying to go back to where we were in the first place?
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They promised any officer who volunteered for retirement a bonus of £1,000 for every inch measured in a straight line between any two points in his body. The officer got to choose what those two points would be.
The first officer who accepted asked that he be measured from the top of his head to the tip of his toes. He was measured at six feet and walked out with a bonus of £72,000.
The second officer who accepted was a little smarter and asked to be measured from the tip of his outstretched hands to his toes. He walked out with £96,000.
The third one was a non-commissioned officer, a grizzly old sergeant-major who, when asked where he would like to be measured, replied, ‘From the tip of my penis to my testicles.’
It was suggested by the pension man that he might want to reconsider, explaining about the nice big cheques the previous two officers had received. But the old sergeant-major insisted and they decided to go along with him providing the measurement was taken by a medical officer.
The medical officer arrived at the barracks in the UK and instructed the sergeant-major to ‘drop ’em’, which he did. The medical officer placed the tape measure on the tip of the sergeant’s penis and began to work back.
‘Dear Lord,’ The medical officer suddenly exclaimed, ‘Where are your balls?’
The old sergeant-major calmly replied, ‘Afghanistan.’
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"My Dear Wife,
You will surely understand that I have certain needs that you, as a 54 year-old, can no longer satisfy. I’m very happy with you and I value you as a good wife. However, after reading this letter, I hope you will not wrongly interpret the fact that I will be spending the evening with my 18 year-old secretary at the Comfort Inn. Please don’t be upset, I shall be back before midnight."
When the man came home late that night, he found a reply to his letter on the dining room table:
"My Dear Husband,
I received your letter and thank you for your honesty about my being 54 years old. I would like to take this opportunity to remind you that you are also 54 years old. I would like to inform you that, while you read this, I will be at the Hotel Fiesta with Michael, one of my students, who is also an assistant tennis coach. He is young, virile and, like your secretary, he is 18. You, being a successful businessman with an excellent knowledge of math, will understand that we are in the same situation, although with one small difference – 18 goes into 54 a lot more times than 54 goes into 18!
See you in a week’s time!’’
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A receding hare line.
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One criminal was accused of murdering his mother-in-law. What made his crime especially depraved was that, after he strangled her, he allegedly cannibalized her body. Caesar said to the man, “What do you have to say for yourself?”
“By golly I did it! I did it all, and if I could do it again, I wouldn’t do one thing different!”
So Caesar said, “You will be put into the Colosseum, where you will be forced to do battle with men and vicious beasts. The people of Rome will delight in the spectacle of your death.” And the tribunes heard and nodded at one another in agreement; for they could think of no more fitting a punishment. Because, after all, he was glad ’e ate ’er.
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A rude man walks into the bank and tells the teller: “I want to open a fucking checking account.”
The teller, upset, says “We don’t tolerate language like that here.”
The man asks “What’s the fucking problem? It’s not like anyone really gives a shit!”
The teller then leaves without a word, to go and speak to the manager about how to deal with this man. The manager, hearing the story, goes back to the man to see what the problem is.
After asking the man, he responds with " There is no fucking problem. All I wanna do is cash my 10 million dollar check from winning the lottery and then put it in this goddamn bank!"
The manager responds with “Oh, and is this bitch over here giving you any problems, sir?”
submitted by /u/notriple
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