Month: February 2020

When President Andrew Johnson was impeached in 1868, not a single Democratic senator voted for his removal.

When President Bill Clinton was impeached in 1998, his fellow Democrats were similarly unanimous in their support for acquittal.

Those two facts make what Sen. Mitt Romney (R–Utah) announced on Wednesday afternoon pretty significant. In a speech on the Senate floor, Romney said he plans to vote for President Donald Trump’s removal from office.

“The president is guilty of an appalling abuse of the public trust,” Romney said. Trump’s purpose in asking the Ukrainain government to investigate Joe Biden and his son, Hunter, was “personal and political,” Romney added.

There are two important caveats here. First, Romney’s vote is highly unlikely to derail Trump’s acquittal by the Senate—the final vote is expected later today.

Second, Romney’s home state of Utah is about as anti-Trump as a red state can be in 2020. When he was elected to the Senate in 2018, Romney promised to be an independent voice within the increasingly Trumpy Republican Party—despite his earlier flirtations with a possible cabinet position in the Trump administration.

In an interview with The Atlantic, Romney talked about relying on his Mormon faith to help make what the senator said was “the most difficult decision I have ever had to make in my life.” That’s certainly an appeal to his constituents, and his vote against Trump is certainly a less risky bet than it would have been for many other GOP senators.

And yet. This is an historic vote, and one that will plant a target firmly on Romney’s back. There is no world in which casting this vote makes it easier for Romney to continue to do his job, or to win another term in office. As tempting as it always is to roll one’s eyes when an elected official talks about “doing the right thing,” this is a rare instance where a senator is doing exactly that—or, at least, believes that he is.

Not surprisingly, the announcement earned Romney some praise from Rep. Justin Amash (R–Mich.), the only other current or former Republican to vote in favor of impeaching Trump.

Thank you, @SenatorRomney, for upholding your oath to support and defend the Constitution. You will never regret putting your faith in God and doing right according to the law and your conscience.

— Justin Amash (@justinamash) February 5, 2020

But the vote is unlikely to win Romney praise from his fellow Republicans. Sen. Josh Hawley (R–Mo.), who is widely regarded as one of the White House’s closest allies in the Senate, told CNN’s Manu Raju that he was “surprised and disappointed” by the announcement. Other rebukes will surely use harsher language.

As he concluded his remarks on Wednesday, Romney tried to downplay the historic nature of the vote he was promising to cast.

“The results of this Senate court will in fact be appealed to a higher court: the judgement of the American people,” he said. “I will tell my children and their children that I did my duty to the best of my ability, believing that my country expected it of me.”

“I will only be one name among many,” he added. “No more, and no less.”

But on Wednesday evening, Mitt Romney’s name will likely stand alone.

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The New York City Commission on Human Rights, an oversight agency that monitors compliance with the city’s incredibly broad anti-discrimination law, has ordered the fashion company Prada to stop selling certain toy dolls—described by many as racist caricatures akin to blackface—and send its employees to sensitivity training.

In doing so, the overzealous agency is claiming vast new powers to police a private entity’s behavior. Unfortunately, Prada is meekly submitting to the commission’s demands, and other companies—including Dior and Gucci—are facing similar inquisitions.

This is just the latest in a series of power grabs on the part of the commission, which has vastly exceeded its authority and now represents a serious threat to free expression in New York City.

In September, the commission announced that an employer or landlord’s use of the term “illegal alien” could be considered a form of illegal discrimination, and result in a fine of up to $250,000. This sweeping declaration was made without any reference to oft-cited limitations: Hostile speech must generally be severe, pervasive, and objectively offensive to rise to the level of harassment, for example. This raises questions about whether the commission’s guidance would survive a legal challenged on First Amendment grounds.

But even before this declaration, the commission had begun an investigation into Prada after receiving complaints that some of their merchandise was racially insensitive, according to The New York Times:

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Criminal courts in Nashville are demanding that some defendants treat bail funds as down payments for any potential court fines and fees. Today, several civil rights groups filed a lawsuit to stop the practice, arguing it’s unconstitutional.

The American Civil Liberties Union, the Civil Rights Corps, and Nashville-based Choosing Justice Initiative are suing the criminal court of Davidson County, Tennessee, in federal court. They filed suit on behalf of a community bail fund and they are asking the court to rule that these garnishment demands are violations of the Eighth Amendment’s prohibition on excessive fines and fees, as well as the 14th Amendment’s right to due process.

When arrestees in Davidson County are offered bail to avoid pretrial imprisonment, they can go through a bail bond company or they can put the money up themselves. Those defendants who attempt to cover their own bail (including those who seek help from family members) face an additional requirement: A bail bond rule requires defendants to agree that the money they give the county to cover the bail can be garnished to pay for any fines and fees the defendant may owe the court if convicted.

The purpose of cash bail is, ostensibly, to make sure that defendants show up for court dates and don’t cause trouble or commit offenses while awaiting trial. If defendants do as ordered, their money is supposed to be returned to them. But in Davidson County’s system, if the defendant is convicted, the court can take their bail money as payment for any fines or fees the defendant owes.

“These garnishment practices bear no relationship to the constitutionally acceptable purpose of money bail: reasonably assuring court appearance. [Criminal Court Clerk Howard] Gentry’s enforcement of these policies harms presumptively innocent people and their support networks by impermissibly taxing pretrial freedom and chilling the posting of bail,” the lawsuit argues.

This garnishment practice means that family members or friends who offer their financial assistance to help a defendant make bail risk losing that money to the court if their friend is convicted, despite the fact that bail is supposed to be returned when the defendant shows up to court. While it is difficult to say what kind of chilling effect this practice has had on defendants looking for bail help from friends and family, Andrea Woods, an ACLU staff attorney with its Criminal Law Reform Project, tells Reason that roughly half of the people who were arrested in Davidson County in 2019 and given bail orders were unable to raise the funds they needed.

In late 2019, the rule became a problem for the Nashville Community Bail Fund (NCBF), a non-profit group that helps low-income defendants post bail. The Fund had been treated by the courts as exempt from the garnishment rule. People would donate to the fund, the fund put up money for bail, and then the fund got its money back when defendants met their pretrial release obligations. This system has enabled the NCBF to help about 1,000 people in the Nashville area get out of jail since 2016. (And lest anybody thinks that they’re helping “criminals” get out of jail to cause more crimes—the narrative opponents of bail reform are using in New York—the NCBF notes that in 53 percent of the cases they assist, the result is no conviction.)

The NCBF operated with this exemption for three years. But in May, the judges with Davidson County’s criminal court decided to rescind NCBF’s exemption, claiming a concern that the bail fund had a significant amount of “conditional forfeiture” potential, essentially meaning that the fund was covering a lot of people’s bail and that money could potentially be lost if defendants don’t show up for court. What this has to do with garnishment is unclear, and the lawsuit notes that the judges didn’t explain how revoking the exemption would actually make it more likely that defendants would show up for court.

“This practice is not rationally connected to the purpose of bail,” Woods tells Reason. “It doesn’t promote court appearances, and instead it’s harming hundreds of people in Nashville. It’s really baffling.”

The most logical explanation is that the loss of the exemption means that the NCBF won’t be able to help as many people, and therefore more people will likely remain in jail. The lawsuit notes that the fund has had to institute a monthly cap of $20,000 in bail assistance. Before the exemption was revoked, the organization reports spending an average of $67,000 each month in bail assistance. While it’s not clear why the court revoked NCBF’s exemption, it’s clearly resulting in the organization helping fewer people make bail.

Nashville is not the only place where courts use bail payments to cover future fees if the defendant is convicted, so there may be other lawsuits like this one down the line. The effort to significantly reduce or eliminate cash bail demands altogether is getting much more media attention. But Woods notes that similar demands happen in Florida, Wisconsin, and Alabama, elsewhere in Tennessee, and in parts of Michigan.

Statistics show that people who aren’t able to get bailed out of jail often end up facing harsher sentences and accept worse plea deals than those who are free to fight their case outside the confines of a jail cell. Davie Tucker Jr., the vice chairperson of NCBF’s board, notes in a prepared statement that these garnishment rules are just another way to keep people behind bars even though they haven’t been convicted.

“Without our intervention, those who cannot afford bail are forced to sit in cages, losing jobs, housing, and being separated from their families until their case concludes,” Tucker said. “In the end many individuals plead guilty just to get out of jail.”

The lawsuit, Nashville Community Bail Fund v. Gentry, was filed in the U.S. District Court for the Middle District of Tennessee. The lawsuit is asking the court to rule that these garnishment demands violate the Eighth and 14th Amendments, and they are seeking an injunction that would stop Davidson County from enforcing this policy.

Read the lawsuit here.

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Michael Bloomberg, who as mayor of New York City presided over a dramatic surge in pot possession busts and last year called legalizing cannabis “perhaps the stupidest thing we’ve ever done,” now says “putting people in jail for marijuana” is “really dumb.” You might suspect that Bloomberg’s turnaround on marijuana, like his sudden repudiation of the NYPD’s “stop, question, and frisk” program after years of steadfastly defending it, has something to do with his entry into the race for the Democratic presidential nomination. But his new position is morally incoherent, since he continues to support prohibition even while saying marijuana use should not be treated as a crime.

While Bloomberg was visiting Denver on Saturday, a reporter for the local NBC station noted his condemnation of marijuana legalization and asked, “Are the people of Colorado stupid for legalizing it?” Bloomberg’s response:

The first thing is we shouldn’t put anyone in jail over it. Colorado has a right to do what they want to do. I would advise going slowly to any other state because it’s not clear, doctors aren’t sure whether or not it’s doing damage. If a state wants to do it, and Colorado and Washington were the first two that did it, that’s up to the state. What I really object to is putting people in jail for marijuana. That’s really dumb.

As long as producing and distributing cannabis remain illegal, of course, the government will still be “putting people in jail for marijuana,” which according to Bloomberg is “really dumb.” If people should not be arrested for marijuana use, as Bloomberg now claims to believe, it is hard to see why people should be arrested merely for facilitating marijuana use.

Since three-quarters of Democrats support marijuana legalization, Bloomberg’s continued opposition puts him at odds with the primary voters he is counting on to secure his nomination. Except for former Vice President Joe Biden, all of the other Democratic presidential contenders favor repealing marijuana prohibition, not just keeping consumers out of jail or tolerating state-level legalization.

At the other extreme in the Democratic field is Sen. Bernie Sanders (I-Vt.), who is now promising that “on my first day in office through executive order we will legalize marijuana in every state in this country.” That idea is legally impossible for at least three reasons.

First, while the executive branch has the authority to reclassify marijuana without new legislation, the process is rather complicated, involving consultation between the attorney general and the Department of Health and Human Services (HHS). After the department evaluates the merits of moving a drug to a different schedule based on a list of specified criteria, it makes a recommendation to the attorney general, who decides whether to initiate a rulemaking process. All of this obviously could not be accomplished on the first day of a Sanders administration (or even within the first few months), especially since he would not even have had a chance to appoint a new attorney general or HHS secretary.

Second, while the Controlled Substances Act lets the attorney general move marijuana from Schedule I to a less restrictive category, the statute’s incorporation of treaty requirements seems to preclude removing marijuana from the schedules altogether without amending the law.

Third, even if Sanders could magically overcome those obstacles on his first day in office, the effect would be to repeal the federal ban on marijuana, which would not “legalize marijuana in every state.” States would still be free to retain their own laws criminalizing the production, distribution, and possession of marijuana.

But at least Sanders’ heart is in the right place on this issue, while Bloomberg’s position is a moral muddle.

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