Category: reason

Video: Two ‘Homeless Liaison’ Deputies in California Kill a Man for Jaywalking

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Video released this week shows two deputies in Orange County, California, debating whether a man was jaywalking before they confronted him in the street with a scene that ultimately escalated in a struggle and one of the deputies fatally shooting him.

The incident took place on September 23. Two deputies, since identified as Eduardo Duran and Jonathan Israel, found Kurt Andras Reinhold, 42, crossing a street in San Clemente, California. They were in their cruiser, which they then parked. They confronted Reinhold, attempting to detain him for jaywalking. Reinhold was uncooperative and refused to follow orders from the deputy. This escalated into a fight as one of the deputies tried to stop Reinhold from walking away. A bystander and a nearby business’s surveillance camera captured the fight on video. At one point, one deputy started screaming “he’s got my gun” over and over again, and the other deputy drew his gun and shot Reinhold. He died on the scene.

Reinhold’s family (he has a wife and two children) is suing the Orange County Sheriff’s Department, noting that the deputies escalated the situation to the point of violence. The grainy images of the confrontation show Reinhold’s hand, while he’s struggling on the ground, on the deputy’s holster, but it’s not clear whether he’s trying to grab the deputy’s gun or escape a hold. The Los Angeles Times notes that the deputies had spoken to Reinhold previously about trespassing, but he hadn’t been arrested or cited, and the encounters had been peaceful.

On Wednesday, the sheriff’s department released more video, including the deputies’ dashcam recording prior to the encounter turning violent. There’s no body camera footage. The Orange County Sheriff’s Department only recently began the process of equipping deputies with body cameras and doesn’t expect to have them fully rolled out until next year. And unfortunately, the confrontation happened behind the deputy’s patrol car, so the dash camera didn’t capture it, recording only what the officers were saying.

These two deputies are part of the Orange County Sheriff’s Department’s “homeless liaison officers.” Their job is to “assist the homeless population and provide them with access to available resources and services, while protecting the quality of life for the citizens of Orange County through proactive enforcement.”

You won’t find any of that in the video below. Instead, you’ll find two deputies looking to make a bust:

The debate between the two deputies is not about whether they can do anything to help Reinhold or whether he represents a threat to himself or others—there’s nothing that either of the deputies says that indicates that they care about him at all. The only debate is whether Reinhold had actually jaywalked, which they clearly want to use as a justification to detain him.

And that becomes apparent during the actual confrontation. The two never say anything about wanting to assist him or “provide [him] with access to available resources and services,” as their job description calls for. The entire confrontation involves the two of them demanding Reinhold’s compliance and arguing with him about whether he jaywalked, with one deputy repeatedly, stupidly declaring, “This is a controlled intersection,” a sentence that is probably meaningless to most people. They don’t want to help Reinhold. They want him to shut up and do what he’s told. One says, “Are you going to stop, or are we going to have to make you stop?”

These are exactly the kind of incidents reformers have in mind when they talk about not sending police to deal with every kind of problem. Ultimately, investigators may decide that the shooting was “justified” by virtue of how Reinhold behaved during the fight. But it’s entirely the deputies’ fault that it got to that point. At least one of those deputies wanted a confrontation. He wanted not to help Reinhold but to punish him.

Regardless of whether either of the deputies is found culpable for Reinhold’s death, it’s clear they are not actually doing the work the sheriff’s department describes. Some cities are seeing success in sending health care workers to respond to certain types of 911 calls rather than police officers, recognizing that law enforcement is not always well-suited to handling mental health or homelessness issues. This unnecessary confrontation is a textbook example.

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New Mexico Could Be the Third State To Authorize Lawsuits Against Abusive Cops Without Qualified Immunity

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The New Mexico House of Representatives this week approved a bill that would allow people to sue government agencies for violations of rights protected by the state constitution. The bill, which is based on recommendations from a state Civil Rights Commission that the legislature and Gov. Michelle Lujan Grisham established after George Floyd’s death last May, still needs approval by the state Senate. If it passes and Grisham signs it, New Mexico would be the third state to authorize new civil remedies for police abuse without the barrier of “qualified immunity” since Floyd was killed by Minneapolis police.

Qualified immunity, a restriction imposed by the Supreme Court, bars federal civil rights lawsuits unless they allege misconduct that violated “clearly established” law. In practice, that requirement is so formidable that it’s unclear whether former Minneapolis police officer Derek Chauvin, who faces murder and manslaughter charges for killing Floyd by kneeling on his neck for more than eight minutes, could be held accountable under 42 USC 1983, which allows people to sue government officials for constitutional violations.

Defenders of qualified immunity warn that restricting or abolishing it would have a chilling effect on policing, forcing officers to constantly worry about being sued for doing their jobs. The New Mexico Civil Rights Act, like the laws that Colorado and Connecticut passed last year, addresses that concern by requiring government agencies (i.e., insurers and taxpayers), rather than individual defendants, to pay legal costs and damages. Notwithstanding that concession, every single Republican in the state House, joined by five Democrats, voted against the bill.

The bill will next be considered by the Senate Judiciary Committee. Its chairman, Sen. Joseph Cervantes (D–Las Cruces), said the legislation will receive “a great deal of scrutiny,” although he also said he was pleased by amendments aimed at allaying the concerns of local governments. Democrats outnumber Republicans by 27 to 15 in the Senate, so passage seems like a real possibility if the partisan split on the bill is similar to the vote in the House. Both chambers would have to approve the same version of the bill and send it to Grisham for her signature by March 20.

Colorado’s law requires indemnification of a police officer who is sued unless “the peace officer’s employer determines that the officer did not act on a good faith and reasonable belief that the action was lawful.” Connecticut requires municipalities to cover all defendant expenses unless an officer’s misconduct was “deliberate, willful or committed with reckless indifference.” The New Mexico bill goes even further, ruling out individual liability in any circumstances.

Even without such legal requirements, police officers almost never have to pay a dime for their misconduct, since their employers routinely indemnify them. This issue is therefore mostly a red herring in the debate about qualified immunity. The fact that Republicans uniformly opposed the New Mexico bill even with a guarantee against personal liability further demonstrates that opposition to reform is actually based on other, less popular concerns.

The New Mexico Civil Rights Act, like 42 USC 1983 but unlike the Colorado and Connecticut laws, covers all government officials, not just police officers. It authorizes damages of no more than $2 million for “deprivation of any rights, privileges or immunities pursuant to the bill of rights of the constitution of New Mexico.” It specifies that “the defense of qualified immunity” does not apply, meaning that plaintiffs will get a chance to prove their claims even if they cannot locate precedents with nearly identical facts.

“The bill has drawn fierce opposition from city and county governments that argue they already face costly legal exposure for wrongdoing by law enforcement and correctional officers,” the Albuquerque Journal reports. “The New Mexico Association of Counties warned about the possibility of counties losing some of their insurance coverage, leaving less money to pay out claims.”

That concern also seems to be overblown. According to a January 5 report from the University of Connecticut’s Insurance Law Center, insurers are not worried about the impact of that state’s law. The authors found “no evidence” that Connecticut’s new cause of action will “substantially increase the cost of municipal liability insurance.”

That finding cuts both ways, of course. Contrary to the concerns raised in New Mexico, it suggests that allowing people to sue abusive police officers under state law without having to overcome qualified immunity won’t have much of an impact on local budgets. But contrary to the hopes of the doctrine’s critics, it also suggests that eliminating the defense won’t give local governments much of a financial incentive to prevent police misconduct.

That hardly means there is no benefit from abolishing qualified immunity. First and foremost, more victims of police abuse, ranging from shockingly reckless behavior to deliberate misconduct, could obtain compensation for their injuries. And even if the cost of those payouts does not figure prominently in the decisions of police departments and local governments, the negative publicity generated by such cases would provide an incentive for better training and supervision. UCLA law professor Joanna Schwartz, a leading critic of qualified immunity, also argues that more cases and more trials could “influence officer behavior” by disclosing information about policies and practices that is “sometimes unknown to the government entities whose employees are implicated in the suit.”

Scrapping qualified immunity also would help clarify important constitutional questions that currently go unresolved as courts block lawsuits without deciding whether the actions they allege were illegal. The Supreme Court has allowed that shortcut since 2009, when it said judges need not assess a plaintiff’s constitutional claims if they conclude that the rights police allegedly violated were not clearly established at the time.

“Qualified immunity is a failure as a matter of policy, as a matter of law, and as a matter of basic morality,” says Institute for Justice Attorney Keith Neely, who submitted testimony in support of the New Mexico bill. “For too long, qualified immunity has denied victims a remedy for violations of their constitutional rights. We urge the Senate to seize this historic opportunity to end this injustice. Any police reform bill is only meaningful if it includes reform to qualified immunity.”

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New Mexico Could Be the Third State To Authorize Lawsuits Against Abusive Cops Without Qualified Immunity

Michelle-Lujan-Grisham-Newscom-2

The New Mexico House of Representatives this week approved a bill that would allow people to sue government agencies for violations of rights protected by the state constitution. The bill, which is based on recommendations from a state Civil Rights Commission that the legislature and Gov. Michelle Lujan Grisham established after George Floyd’s death last May, still needs approval by the state Senate. If it passes and Grisham signs it, New Mexico would be the third state to authorize new civil remedies for police abuse without the barrier of “qualified immunity” since Floyd was killed by Minneapolis police.

Qualified immunity, a restriction imposed by the Supreme Court, bars federal civil rights lawsuits unless they allege misconduct that violated “clearly established” law. In practice, that requirement is so formidable that it’s unclear whether former Minneapolis police officer Derek Chauvin, who faces murder and manslaughter charges for killing Floyd by kneeling on his neck for more than eight minutes, could be held accountable under 42 USC 1983, which allows people to sue government officials for constitutional violations.

Defenders of qualified immunity warn that restricting or abolishing it would have a chilling effect on policing, forcing officers to constantly worry about being sued for doing their jobs. The New Mexico Civil Rights Act, like the laws that Colorado and Connecticut passed last year, addresses that concern by requiring government agencies (i.e., insurers and taxpayers), rather than individual defendants, to pay legal costs and damages. Notwithstanding that concession, every single Republican in the state House, joined by five Democrats, voted against the bill.

The bill will next be considered by the Senate Judiciary Committee. Its chairman, Sen. Joseph Cervantes (D–Las Cruces), said the legislation will receive “a great deal of scrutiny,” although he also said he was pleased by amendments aimed at allaying the concerns of local governments. Democrats outnumber Republicans by 27 to 15 in the Senate, so passage seems like a real possibility if the partisan split on the bill is similar to the vote in the House. Both chambers would have to approve the same version of the bill and send it to Grisham for her signature by March 20.

Colorado’s law requires indemnification of a police officer who is sued unless “the peace officer’s employer determines that the officer did not act on a good faith and reasonable belief that the action was lawful.” Connecticut requires municipalities to cover all defendant expenses unless an officer’s misconduct was “deliberate, willful or committed with reckless indifference.” The New Mexico bill goes even further, ruling out individual liability in any circumstances.

Even without such legal requirements, police officers almost never have to pay a dime for their misconduct, since their employers routinely indemnify them. This issue is therefore mostly a red herring in the debate about qualified immunity. The fact that Republicans uniformly opposed the New Mexico bill even with a guarantee against personal liability further demonstrates that opposition to reform is actually based on other, less popular concerns.

The New Mexico Civil Rights Act, like 42 USC 1983 but unlike the Colorado and Connecticut laws, covers all government officials, not just police officers. It authorizes damages of no more than $2 million for “deprivation of any rights, privileges or immunities pursuant to the bill of rights of the constitution of New Mexico.” It specifies that “the defense of qualified immunity” does not apply, meaning that plaintiffs will get a chance to prove their claims even if they cannot locate precedents with nearly identical facts.

“The bill has drawn fierce opposition from city and county governments that argue they already face costly legal exposure for wrongdoing by law enforcement and correctional officers,” the Albuquerque Journal reports. “The New Mexico Association of Counties warned about the possibility of counties losing some of their insurance coverage, leaving less money to pay out claims.”

That concern also seems to be overblown. According to a January 5 report from the University of Connecticut’s Insurance Law Center, insurers are not worried about the impact of that state’s law. The authors found “no evidence” that Connecticut’s new cause of action will “substantially increase the cost of municipal liability insurance.”

That finding cuts both ways, of course. Contrary to the concerns raised in New Mexico, it suggests that allowing people to sue abusive police officers under state law without having to overcome qualified immunity won’t have much of an impact on local budgets. But contrary to the hopes of the doctrine’s critics, it also suggests that eliminating the defense won’t give local governments much of a financial incentive to prevent police misconduct.

That hardly means there is no benefit from abolishing qualified immunity. First and foremost, more victims of police abuse, ranging from shockingly reckless behavior to deliberate misconduct, could obtain compensation for their injuries. And even if the cost of those payouts does not figure prominently in the decisions of police departments and local governments, the negative publicity generated by such cases would provide an incentive for better training and supervision. UCLA law professor Joanna Schwartz, a leading critic of qualified immunity, also argues that more cases and more trials could “influence officer behavior” by disclosing information about policies and practices that is “sometimes unknown to the government entities whose employees are implicated in the suit.”

Scrapping qualified immunity also would help clarify important constitutional questions that currently go unresolved as courts block lawsuits without deciding whether the actions they allege were illegal. The Supreme Court has allowed that shortcut since 2009, when it said judges need not assess a plaintiff’s constitutional claims if they conclude that the rights police allegedly violated were not clearly established at the time.

“Qualified immunity is a failure as a matter of policy, as a matter of law, and as a matter of basic morality,” says Institute for Justice Attorney Keith Neely, who submitted testimony in support of the New Mexico bill. “For too long, qualified immunity has denied victims a remedy for violations of their constitutional rights. We urge the Senate to seize this historic opportunity to end this injustice. Any police reform bill is only meaningful if it includes reform to qualified immunity.”

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Joe Biden Offers Bold Talk, Timid Action on Immigration

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During the final presidential debate last fall, Donald Trump touted what he considered his biggest immigration accomplishment. “We got rid of catch and release,” he boasted. Joe Biden could have easily let the wonky phrase slide past him, focusing on poll-tested attacks of Trump’s policy of punitively separating immigrant families at the border. But in a move that undoubtedly stunned the consultants who had carefully coached him on messaging, Biden took the bait.

The former vice president launched into an extended defense of “catch and release”—a policy of allowing vetted asylum seekers to remain at liberty in the U.S. while awaiting a hearing, rather than languishing in jail at the border. He even counterattacked, explaining that Trump had made the situation worse by forcing families to wait in Mexico. “They’re sitting in squalor on the other side of the river,” he said passionately. 

This highly unexpected exchange was Biden’s final pitch to Americans on immigration, and it was the culmination of 18 months in which Biden adopted the opposite position from Trump on nearly every immigration issue. But putting out a position paper for journalists is one thing. Volunteering a defense of a controversial policy on a national debate stage with the presidency at stake is another. It was as clear a statement as you could get: Here was a candidate who was ready to reopen the country to immigrants, especially to asylum seekers and legal applicants. 

Or at least, that’s what Biden was saying in 2020.

Biden has been in politics long enough to have been on every side of practically every immigration debate. In the 1970s, he was reticent about paying to evacuate and resettle South Vietnamese anti-communist refugees. But by 1980, he was a leading proponent of the Refugee Act, which led to a massive increase in refugee resettlement from Vietnam and around the world. 

In 1986, Biden voted to legalize 3 million unauthorized immigrants. In 1996, he voted for the harshest crackdown on unauthorized immigrants in U.S. history. In 2006, he voted to build a fence along the southern border. In 2020, he campaigned to end funding for Trump’s border wall.

Biden is the Democratic Party’s rusty weathervane, and in 2020 he was following the prevailing winds. Not only did a supermajority of Democrats favor legalizing immigrants in the country illegally, Gallup found that for the first time in its 65 years of asking the question, most Democrats wanted to increase legal immigration from abroad as well. They even wanted more refugees and more asylum seekers. 

Biden campaigned accordingly. His platform was probably as pro-immigrant as any winning candidate since Lincoln. No category of immigration wouldn’t see a bump on his watch, he promised, and all of Trump’s “shameful” policies would immediately end. He promised to send a comprehensive immigration bill to Congress on day one. He would accomplish what all Democratic presidents before him had failed to deliver: real change.

During Trump’s four years in office, America saw more families, unaccompanied children, and other immigrants travel up through Mexico to cross the U.S. border than during all eight years under Obama combined. The vast majority came to request asylum, a legal status for those fleeing violent persecution in their home countries. They arrived primarily from Central America’s Northern Triangle—Guatemala, Honduras, and El Salvador—but also from Cuba, India, Africa, and dozens of other places. 

Stopping this flow became the focus of Trump’s immigration policy. Asylum seekers’ first choice would be to apply at one of the ports of entry where hundreds of thousands of visitors cross from Mexico to the United States each day since U.S. law explicitly allows anyone arriving in the United States to apply for asylum. But in 2018, the Department of Homeland Security (DHS) blockaded the legal crossings, stationing agents at the exact border line to push anyone who said they wished to apply for asylum back into Mexico. The policy (dubbed metering) allowed agents to accept only a token number to cross each day, but the goal was to deter people from coming at all. 

Unable to reach family and jobs arranged north of the border, even immigrant families who arrived with a game plan suddenly faced homelessness, hunger, and crime in dangerous neighborhoods within eyeshot of U.S. inspectors. New York Times reporters described the “grim sight” of destitute families sleeping on pizza boxes in the doorways of public restrooms, surrounded by piles of donations of diapers and baby formula.

Human Rights First, a watchdog group, maintains a database on crimes committed against migrants who have been forced to wait in Mexico. As of December 2020, it contained 1,314 crimes since 2018, including assaults, rapes, and murders, against migrants blocked by U.S. agents. Jasson Ricardo Acuna Polanco and Jorge Alexander Ruiz Duban—two Honduran teenagers—were stabbed and choked to death by thieves in December 2018 while waiting to cross after port inspectors sent them away. 

These dangers inevitably lead many immigrants to cross around the ports of entry. Pre-Trump, those who crossed illegally and requested asylum would be held in temporary Border Patrol facilities and transferred to Immigration and Customs Enforcement (ICE) detention centers. Asylum officers would interview them to determine if they had a “credible” claim, evaluating whether their claims matched the legal requirements of the law, were internally consistent, and matched other known facts or evidence. If they failed to meet that threshold or had committed any serious crimes, they were placed on the next ICE plane home. If they did, they were usually released to await a final asylum hearing many months from then. 

After briefly trying a policy of separating undocumented parents from their children, Trump officials settled on a more politically palatable backup for deterring comers: If immigrants fear being in Mexico so much that they’ll risk crossing illegally and being arrested, why not send them back to Mexico to await their hearings? Given the dangers, they figured, people will abandon their applications and go home.

A “remain-in-Mexico” policy bearing the Orwellian name “Migrant Protection Protocols” (MPP) was born. It had an immediate effect. 

Gangs murdered a Salvadoran man in Tijuana in December 2019 after DHS agents kicked him out of the United States to await his hearing in Mexico. Several dozen rapes of MPPers were reported to U.S. and Mexican authorities, including one that involved Mexican police. And as Trump hoped, many asylum seekers gave up, and nearly all of the 11,000 cases that reached a final resolution ended with orders of removal in absentia. But many continued to wait.

By March 2020, almost 70,000 asylum seekers had been dumped back into Mexico’s border cities, and the number of crossings had fallen significantly. Nonetheless, when the COVID-19 pandemic hit, Trump’s White House seized on the crisis to act. It forced the Centers for Disease Control and Prevention (CDC) to overrule its senior medical staff and declare that it was medically justified to suspend the crossings of all undocumented migrants. The DHS then used this declaration to “expel” anyone from the United States who crossed the border from Mexico, to completely shut off even the token numbers admitted at ports under metering, and to suspend MPP hearings, so anyone already waiting in Mexico was just stuck.

These moves were a deathblow to America’s asylum system. The U.S. government has now expelled hundreds of thousands of crossers. Usually it simply drops them back in Mexico. But the DHS is actually flying political dissidents back to Nicaragua, where there have been reports that the government is arresting and beating them. 

In the debate, Trump understated his accomplishment. He didn’t just get rid of catch and release. He got rid of asylum altogether. 

Biden is intimately aware of this humanitarian disaster. Not only did he decry it in the debates, but he lamented in an October 2020 speech the nearly 10,000 Cubans “languishing in tent camps along the border.” He guaranteed he would end the MPP on his first day in office. In a July 2020 piece for The Washington Post, future first lady Jill Biden issued a plea to bring the asylum seekers in Mexico back to the United States, arguing that America’s identity was “on the ballot” in November. 

The position was so clearly stated that migrants encamped at the border celebrated when Biden won. “This is not only a Biden victory. We migrants also won, and we are very happy,” one asylum seeker in Mexico told BuzzFeed News in November. “Seeing Trump once again sit on his throne would have been fatal for us.”

Trump may not be back on his “throne,” but the king’s policies outlived him. 

In December, Biden’s choice for Domestic Policy Council director, Susan Rice, told Spanish-language TV that no one should “believe those in the region peddling the idea that the border will suddenly be fully open to process everyone on day one. It will not.” At the time, it seemed strange that she would call her boss’s campaign promises “peddling an idea,” but Biden himself soon provided clarity.

“It will get done,” Biden told reporters. “But it’s not going to be able to be done on day one.” During the campaign, Biden enthusiastically promised to welcome more asylum seekers, but now he characterizes the arrival of more applicants at the border as a “crisis” that would “complicate what we’re trying to do.” Biden might as well have been quoting Trump, who had constantly used the same specter of a “crisis” to eliminate asylum and impose other restrictions throughout his term. 

In January, Biden signed his first immigration executive orders. He required a review of the country’s current asylum policies, but the CDC’s health declaration and the expulsion policy that came with it would persist. He attempted to freeze most new deportations of noncriminals, but not for recent border crossers and asylum seekers.

While ports remained completely closed to asylum applicants, advisers quietly leaked to reporters that they planned to include Trump’s metering policy as part of Biden’s grand plan to fix asylum after they reopened. When Biden called for “guardrails” for the asylum system in December after the election, those same advisers explained what he really meant were “limits being set on the number of people allowed through.” Never mind that Congress never approved any caps on asylum.

Biden’s DHS did exempt unaccompanied children from the immediate expulsion policy, so they are now transferred to shelters, foster care, or family members who are already in the United States. Mexico has started to refuse to accept some expulsions of non-Central American immigrants in certain places, so a few families who crossed to request asylum are now being released from custody into the United States to await hearings rather than immediately expelled. 

Biden has announced a plan to slowly begin to let MPP participants wait for their hearings on U.S. soil. But the tentative plan—letting in a trickle of about 600 additional asylum seekers per day only after advanced screening and negative COVID-19 tests—stands in marked contrast to the bold policies proposed by candidate Biden in 2020. In June 2019, before MPP and the CDC expulsion policies, DHS encountered and processed more than 4,600 undocumented immigrants per day at or between the ports along the border.

In 2021, Biden has so far chosen to move slowly. Overall, his border policies resemble a slightly less strict version of Trump’s policies. As White House Press Secretary Jen Psaki told reporters in February, “The vast majority of people will be turned away.”

What about legal immigration? During his 2019 State of the Union address, Trump told the nation that he wanted people to come here legally “in the largest numbers ever.” Ironically, it would be the third straight year that legal immigration declined. 

At first, Trump reduced the flow of legal immigration using a thousand little cuts. One of his first acts was “extreme vetting,” which involved banning migrants from several majority-Muslim countries and massively increasing the length and complexity of the required immigration paperwork. In the name of “security,” the new forms asked vague gotcha questions that often necessitated the involvement of an attorney, increasing the costs to obtain visas. 

The State Department and DHS came out with new “public charge” rules that effectively created a presumption against approving immigrants with incomes below a certain threshold. In theory, the idea was to keep out immigrants who might use welfare at some point in the future, even though DHS’s own statistics showed that most noncitizens near or below the poverty line received no welfare of any kind. Regardless, the rules are creating huge problems for all immigrants. These complicated data requirements force applicants to produce financial records and documentation on an almost unimaginable scale, requesting information that many immigrants don’t even possess. Inability to produce the evidence results in a denial.

As soon as Trump took office, word came down that as many people as possible should be rejected, and denials spiked. DHS even started denying anyone who left anything on an application blank—including current addresses for deceased parents. Denials of U.S. citizens petitioning for family members or employees to receive immigrant visas and green cards doubled. And even if the family member’s or employer’s petition was approved, immigrants were twice as likely as they had been to be denied a visa by the consulates.

The number of new legal permanent residents entering from abroad was down by about a quarter by the end of 2019. Then the bottom fell out.

When the pandemic struck the United States, the State Department closed its consulates, meaning that it could issue virtually no new visas. Trump also added country-specific travel bans for almost anyone coming from China, Iran, Europe, or Brazil who wasn’t a U.S. citizen. In April and June 2020, he issued proclamations suspending visas for almost all immigrants and guest workers—bans that have been extended until March 31, 2021.

These visa bans were not based on a concern about spreading COVID-19. Instead, Trump called new immigrants and guest workers a “threat” to the U.S. labor market. Never mind that the unemployment rate for the highest-skilled computer occupations, which dominate the employment-based visa system, barely budged despite the pandemic. And never mind that low-skilled jobs for guest workers have to be offered to U.S. workers before someone can be hired from abroad. That the ban applied even to little children and retirees gives insight into its real goal: fewer foreigners of all kinds.

Immigration plunged by about 90 percent—greater than any full year on record. In January, Trump extended the protectionist visa bans and left office with one of the lowest per-capita legal immigration rates in U.S. history. 

The immigration plan that Biden released before the pandemic was designed to weave its way through America’s complex legal immigration system, concluding at each juncture that more was better. More family reunification. More high-skilled visas. More seasonal workers. More refugees. More visas for participants in the diversity visa lottery program, which permits some immigration for nationalities that normally receive few visas under the family- and employer-sponsored system. He even wanted to create a new community-sponsored visa program to deal with “shrinking populations, an erosion of economic opportunity, and local businesses that face unique challenges.” 

Biden rarely hedged. His proposal outlined the most ambitious and expansive legal immigration strategy of any winning presidential candidate in at least 150 years. When the pandemic hit, and then when he won the nomination, commentators predicted a move to the middle that never came. Biden stuck by his plan. He called Trump’s protectionist visa bans a distraction from dealing with COVID-19. “Immigrants help grow our economy and create jobs,” he tweeted. “The President can’t scapegoat his way out of this crisis.” 

 Biden had even criticized Trump’s decision to enact country bans supposedly to stop the spread of the virus. “Banning all travel from Europe—or any other part of the world—will not stop it,” Biden tweeted in March 2020. Biden’s view reflected the reasoned judgment of the academic literature on travel restrictions, and Trump’s bans ultimately did not keep the pandemic away. 

Yet five days into office, Biden underwent an unexplained 180. He extended travel bans on most noncitizens coming from Brazil and Europe, even though Trump had set them to expire the very next day, and expanded the ban to include South Africa. For the hundreds of thousands of legal immigrants awaiting visas abroad, it was a foreboding signal.

When Biden signed an executive order on February 2 that included in the title “Restoring Faith in Our Legal Immigration Systems,” hope surged that the new president would at least rescind Trump’s visa bans on families and workers, reopen the consulates, and restart the legal immigration process in other countries. In the end, however, the order did little more than require agencies to review their current policies.

In February, America’s largest trade and business associations wrote a public letter urging an end to the visa ban, detailing how it was separating families and harming their operations. Still, Biden remained silent. Meanwhile, his Justice Department has gone to court to defend his authority to keep the ban in place, even arguing that family separation doesn’t necessarily constitute “irreparable harm” to U.S. citizens and their immigrant family members. 

The visa bans are set to expire on March 31, but even if they do, administration officials have shown little willingness to reopen consulates and begin issuing visas again. Each day that passes, the backlog of hundreds of thousands of immigrants grows. Because the law limits the number of visas issued in a fiscal year, many of the visas they would have received will be lost if they aren’t issued by September. 

The only positive development on legal immigration is that Biden increased the refugee cap, albeit to a lower number than he initially promised. But his unwillingness to streamline Trump- and Bush-era “extreme vetting” means that the cap will likely not be filled this year anyway. 

Democrats have unified control of Congress, the body that ultimately decides what the laws will be. Well, that’s the grade-school theory anyway, and to his credit, Biden has attempted to follow it. On day one, he sent his requirements for a bill to Congress.

While it was not as sweeping as his campaign plan, it was still broad and included a path to citizenship for almost all 11 million unauthorized immigrants and more green cards for workers and families. Congressional Democrats threw together a bill in a month that met its requirements, but even they acknowledged the bill has little hope in the Senate, where Republicans and perhaps even some moderate Democrats oppose it. No effort was made to obtain bipartisan support for it.

Instead, Biden’s party is focusing on a few narrow bills that it believes have crossover appeal: legalizations for Dreamers, farmworkers, and participants in the Temporary Protected Status program for those undocumented immigrants who have been granted temporary safety from instability at home. 

What Biden will give up to get these discrete bills to his desk remains unclear. His immigration bill includes no new enforcement measures that would appease the GOP, and he hasn’t so far been willing to mix immigration into negotiations over his other top priorities: the COVID-19 response and economic relief. 

That’s not new. Presidents Obama and Trump both campaigned promising immigration changes. Both had the advantage of a friendly Congress. But neither wanted immigration reforms to upset prospects for their other major priorities. 

The stalemate leaves the executive branch as the most likely place for change. The Biden administration does have some ability to change policy without congressional involvement. But hopeful immigrants and employers would be wise to remember how conservative Biden has shown himself to be. 

Biden personally understands immigration policy better than almost any president in history. For decades he has played a crucial role in making it, both during his time as a senator and during his time as vice president. This understanding is certainly an asset for good governance. Unfortunately, it also probably also makes him too committed to the current system to take the drastic actions that would be needed to make that system work better. He’s also beholden to a complex interwoven system of partisan priorities that could cause him to turn his back on immigration—or enthusiastically embrace it—later in his presidency, depending on what else is going on.

Many advocates were hopeful that the wave of outrage against Trump’s abuses would translate into more than just a reversal of those policies. He could streamline or remove onerous regulations and interpret ambiguous laws in the favor of approving applicants, rather than denying them. Maybe these things will happen eventually. The end of the pandemic will undoubtedly help. But so far, the Biden administration seems to have little appetite to wield the powers of the executive on behalf of immigrants as aggressively as Trump did against them. 

Immigration law is a complicated, inhumane mess. But Congress has given the president vast authority to interpret and implement the law in simple and humane ways. Biden currently seems reluctant to use it, whether out of shortsighted political calculation or a lack of genuine belief in the goal.

But that’s 2021 Biden. Who can predict what 2022 Biden will do, or any of the Bidens who will come after him.

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Joe Biden Offers Bold Talk, Timid Action on Immigration

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During the final presidential debate last fall, Donald Trump touted what he considered his biggest immigration accomplishment. “We got rid of catch and release,” he boasted. Joe Biden could have easily let the wonky phrase slide past him, focusing on poll-tested attacks of Trump’s policy of punitively separating immigrant families at the border. But in a move that undoubtedly stunned the consultants who had carefully coached him on messaging, Biden took the bait.

The former vice president launched into an extended defense of “catch and release”—a policy of allowing vetted asylum seekers to remain at liberty in the U.S. while awaiting a hearing, rather than languishing in jail at the border. He even counterattacked, explaining that Trump had made the situation worse by forcing families to wait in Mexico. “They’re sitting in squalor on the other side of the river,” he said passionately. 

This highly unexpected exchange was Biden’s final pitch to Americans on immigration, and it was the culmination of 18 months in which Biden adopted the opposite position from Trump on nearly every immigration issue. But putting out a position paper for journalists is one thing. Volunteering a defense of a controversial policy on a national debate stage with the presidency at stake is another. It was as clear a statement as you could get: Here was a candidate who was ready to reopen the country to immigrants, especially to asylum seekers and legal applicants. 

Or at least, that’s what Biden was saying in 2020.

Biden has been in politics long enough to have been on every side of practically every immigration debate. In the 1970s, he was reticent about paying to evacuate and resettle South Vietnamese anti-communist refugees. But by 1980, he was a leading proponent of the Refugee Act, which led to a massive increase in refugee resettlement from Vietnam and around the world. 

In 1986, Biden voted to legalize 3 million unauthorized immigrants. In 1996, he voted for the harshest crackdown on unauthorized immigrants in U.S. history. In 2006, he voted to build a fence along the southern border. In 2020, he campaigned to end funding for Trump’s border wall.

Biden is the Democratic Party’s rusty weathervane, and in 2020 he was following the prevailing winds. Not only did a supermajority of Democrats favor legalizing immigrants in the country illegally, Gallup found that for the first time in its 65 years of asking the question, most Democrats wanted to increase legal immigration from abroad as well. They even wanted more refugees and more asylum seekers. 

Biden campaigned accordingly. His platform was probably as pro-immigrant as any winning candidate since Lincoln. No category of immigration wouldn’t see a bump on his watch, he promised, and all of Trump’s “shameful” policies would immediately end. He promised to send a comprehensive immigration bill to Congress on day one. He would accomplish what all Democratic presidents before him had failed to deliver: real change.

During Trump’s four years in office, America saw more families, unaccompanied children, and other immigrants travel up through Mexico to cross the U.S. border than during all eight years under Obama combined. The vast majority came to request asylum, a legal status for those fleeing violent persecution in their home countries. They arrived primarily from Central America’s Northern Triangle—Guatemala, Honduras, and El Salvador—but also from Cuba, India, Africa, and dozens of other places. 

Stopping this flow became the focus of Trump’s immigration policy. Asylum seekers’ first choice would be to apply at one of the ports of entry where hundreds of thousands of visitors cross from Mexico to the United States each day since U.S. law explicitly allows anyone arriving in the United States to apply for asylum. But in 2018, the Department of Homeland Security (DHS) blockaded the legal crossings, stationing agents at the exact border line to push anyone who said they wished to apply for asylum back into Mexico. The policy (dubbed metering) allowed agents to accept only a token number to cross each day, but the goal was to deter people from coming at all. 

Unable to reach family and jobs arranged north of the border, even immigrant families who arrived with a game plan suddenly faced homelessness, hunger, and crime in dangerous neighborhoods within eyeshot of U.S. inspectors. New York Times reporters described the “grim sight” of destitute families sleeping on pizza boxes in the doorways of public restrooms, surrounded by piles of donations of diapers and baby formula.

Human Rights First, a watchdog group, maintains a database on crimes committed against migrants who have been forced to wait in Mexico. As of December 2020, it contained 1,314 crimes since 2018, including assaults, rapes, and murders, against migrants blocked by U.S. agents. Jasson Ricardo Acuna Polanco and Jorge Alexander Ruiz Duban—two Honduran teenagers—were stabbed and choked to death by thieves in December 2018 while waiting to cross after port inspectors sent them away. 

These dangers inevitably lead many immigrants to cross around the ports of entry. Pre-Trump, those who crossed illegally and requested asylum would be held in temporary Border Patrol facilities and transferred to Immigration and Customs Enforcement (ICE) detention centers. Asylum officers would interview them to determine if they had a “credible” claim, evaluating whether their claims matched the legal requirements of the law, were internally consistent, and matched other known facts or evidence. If they failed to meet that threshold or had committed any serious crimes, they were placed on the next ICE plane home. If they did, they were usually released to await a final asylum hearing many months from then. 

After briefly trying a policy of separating undocumented parents from their children, Trump officials settled on a more politically palatable backup for deterring comers: If immigrants fear being in Mexico so much that they’ll risk crossing illegally and being arrested, why not send them back to Mexico to await their hearings? Given the dangers, they figured, people will abandon their applications and go home.

A “remain-in-Mexico” policy bearing the Orwellian name “Migrant Protection Protocols” (MPP) was born. It had an immediate effect. 

Gangs murdered a Salvadoran man in Tijuana in December 2019 after DHS agents kicked him out of the United States to await his hearing in Mexico. Several dozen rapes of MPPers were reported to U.S. and Mexican authorities, including one that involved Mexican police. And as Trump hoped, many asylum seekers gave up, and nearly all of the 11,000 cases that reached a final resolution ended with orders of removal in absentia. But many continued to wait.

By March 2020, almost 70,000 asylum seekers had been dumped back into Mexico’s border cities, and the number of crossings had fallen significantly. Nonetheless, when the COVID-19 pandemic hit, Trump’s White House seized on the crisis to act. It forced the Centers for Disease Control and Prevention (CDC) to overrule its senior medical staff and declare that it was medically justified to suspend the crossings of all undocumented migrants. The DHS then used this declaration to “expel” anyone from the United States who crossed the border from Mexico, to completely shut off even the token numbers admitted at ports under metering, and to suspend MPP hearings, so anyone already waiting in Mexico was just stuck.

These moves were a deathblow to America’s asylum system. The U.S. government has now expelled hundreds of thousands of crossers. Usually it simply drops them back in Mexico. But the DHS is actually flying political dissidents back to Nicaragua, where there have been reports that the government is arresting and beating them. 

In the debate, Trump understated his accomplishment. He didn’t just get rid of catch and release. He got rid of asylum altogether. 

Biden is intimately aware of this humanitarian disaster. Not only did he decry it in the debates, but he lamented in an October 2020 speech the nearly 10,000 Cubans “languishing in tent camps along the border.” He guaranteed he would end the MPP on his first day in office. In a July 2020 piece for The Washington Post, future first lady Jill Biden issued a plea to bring the asylum seekers in Mexico back to the United States, arguing that America’s identity was “on the ballot” in November. 

The position was so clearly stated that migrants encamped at the border celebrated when Biden won. “This is not only a Biden victory. We migrants also won, and we are very happy,” one asylum seeker in Mexico told BuzzFeed News in November. “Seeing Trump once again sit on his throne would have been fatal for us.”

Trump may not be back on his “throne,” but the king’s policies outlived him. 

In December, Biden’s choice for Domestic Policy Council director, Susan Rice, told Spanish-language TV that no one should “believe those in the region peddling the idea that the border will suddenly be fully open to process everyone on day one. It will not.” At the time, it seemed strange that she would call her boss’s campaign promises “peddling an idea,” but Biden himself soon provided clarity.

“It will get done,” Biden told reporters. “But it’s not going to be able to be done on day one.” During the campaign, Biden enthusiastically promised to welcome more asylum seekers, but now he characterizes the arrival of more applicants at the border as a “crisis” that would “complicate what we’re trying to do.” Biden might as well have been quoting Trump, who had constantly used the same specter of a “crisis” to eliminate asylum and impose other restrictions throughout his term. 

In January, Biden signed his first immigration executive orders. He required a review of the country’s current asylum policies, but the CDC’s health declaration and the expulsion policy that came with it would persist. He attempted to freeze most new deportations of noncriminals, but not for recent border crossers and asylum seekers.

While ports remained completely closed to asylum applicants, advisers quietly leaked to reporters that they planned to include Trump’s metering policy as part of Biden’s grand plan to fix asylum after they reopened. When Biden called for “guardrails” for the asylum system in December after the election, those same advisers explained what he really meant were “limits being set on the number of people allowed through.” Never mind that Congress never approved any caps on asylum.

Biden’s DHS did exempt unaccompanied children from the immediate expulsion policy, so they are now transferred to shelters, foster care, or family members who are already in the United States. Mexico has started to refuse to accept some expulsions of non-Central American immigrants in certain places, so a few families who crossed to request asylum are now being released from custody into the United States to await hearings rather than immediately expelled. 

Biden has announced a plan to slowly begin to let MPP participants wait for their hearings on U.S. soil. But the tentative plan—letting in a trickle of about 600 additional asylum seekers per day only after advanced screening and negative COVID-19 tests—stands in marked contrast to the bold policies proposed by candidate Biden in 2020. In June 2019, before MPP and the CDC expulsion policies, DHS encountered and processed more than 4,600 undocumented immigrants per day at or between the ports along the border.

In 2021, Biden has so far chosen to move slowly. Overall, his border policies resemble a slightly less strict version of Trump’s policies. As White House Press Secretary Jen Psaki told reporters in February, “The vast majority of people will be turned away.”

What about legal immigration? During his 2019 State of the Union address, Trump told the nation that he wanted people to come here legally “in the largest numbers ever.” Ironically, it would be the third straight year that legal immigration declined. 

At first, Trump reduced the flow of legal immigration using a thousand little cuts. One of his first acts was “extreme vetting,” which involved banning migrants from several majority-Muslim countries and massively increasing the length and complexity of the required immigration paperwork. In the name of “security,” the new forms asked vague gotcha questions that often necessitated the involvement of an attorney, increasing the costs to obtain visas. 

The State Department and DHS came out with new “public charge” rules that effectively created a presumption against approving immigrants with incomes below a certain threshold. In theory, the idea was to keep out immigrants who might use welfare at some point in the future, even though DHS’s own statistics showed that most noncitizens near or below the poverty line received no welfare of any kind. Regardless, the rules are creating huge problems for all immigrants. These complicated data requirements force applicants to produce financial records and documentation on an almost unimaginable scale, requesting information that many immigrants don’t even possess. Inability to produce the evidence results in a denial.

As soon as Trump took office, word came down that as many people as possible should be rejected, and denials spiked. DHS even started denying anyone who left anything on an application blank—including current addresses for deceased parents. Denials of U.S. citizens petitioning for family members or employees to receive immigrant visas and green cards doubled. And even if the family member’s or employer’s petition was approved, immigrants were twice as likely as they had been to be denied a visa by the consulates.

The number of new legal permanent residents entering from abroad was down by about a quarter by the end of 2019. Then the bottom fell out.

When the pandemic struck the United States, the State Department closed its consulates, meaning that it could issue virtually no new visas. Trump also added country-specific travel bans for almost anyone coming from China, Iran, Europe, or Brazil who wasn’t a U.S. citizen. In April and June 2020, he issued proclamations suspending visas for almost all immigrants and guest workers—bans that have been extended until March 31, 2021.

These visa bans were not based on a concern about spreading COVID-19. Instead, Trump called new immigrants and guest workers a “threat” to the U.S. labor market. Never mind that the unemployment rate for the highest-skilled computer occupations, which dominate the employment-based visa system, barely budged despite the pandemic. And never mind that low-skilled jobs for guest workers have to be offered to U.S. workers before someone can be hired from abroad. That the ban applied even to little children and retirees gives insight into its real goal: fewer foreigners of all kinds.

Immigration plunged by about 90 percent—greater than any full year on record. In January, Trump extended the protectionist visa bans and left office with one of the lowest per-capita legal immigration rates in U.S. history. 

The immigration plan that Biden released before the pandemic was designed to weave its way through America’s complex legal immigration system, concluding at each juncture that more was better. More family reunification. More high-skilled visas. More seasonal workers. More refugees. More visas for participants in the diversity visa lottery program, which permits some immigration for nationalities that normally receive few visas under the family- and employer-sponsored system. He even wanted to create a new community-sponsored visa program to deal with “shrinking populations, an erosion of economic opportunity, and local businesses that face unique challenges.” 

Biden rarely hedged. His proposal outlined the most ambitious and expansive legal immigration strategy of any winning presidential candidate in at least 150 years. When the pandemic hit, and then when he won the nomination, commentators predicted a move to the middle that never came. Biden stuck by his plan. He called Trump’s protectionist visa bans a distraction from dealing with COVID-19. “Immigrants help grow our economy and create jobs,” he tweeted. “The President can’t scapegoat his way out of this crisis.” 

 Biden had even criticized Trump’s decision to enact country bans supposedly to stop the spread of the virus. “Banning all travel from Europe—or any other part of the world—will not stop it,” Biden tweeted in March 2020. Biden’s view reflected the reasoned judgment of the academic literature on travel restrictions, and Trump’s bans ultimately did not keep the pandemic away. 

Yet five days into office, Biden underwent an unexplained 180. He extended travel bans on most noncitizens coming from Brazil and Europe, even though Trump had set them to expire the very next day, and expanded the ban to include South Africa. For the hundreds of thousands of legal immigrants awaiting visas abroad, it was a foreboding signal.

When Biden signed an executive order on February 2 that included in the title “Restoring Faith in Our Legal Immigration Systems,” hope surged that the new president would at least rescind Trump’s visa bans on families and workers, reopen the consulates, and restart the legal immigration process in other countries. In the end, however, the order did little more than require agencies to review their current policies.

In February, America’s largest trade and business associations wrote a public letter urging an end to the visa ban, detailing how it was separating families and harming their operations. Still, Biden remained silent. Meanwhile, his Justice Department has gone to court to defend his authority to keep the ban in place, even arguing that family separation doesn’t necessarily constitute “irreparable harm” to U.S. citizens and their immigrant family members. 

The visa bans are set to expire on March 31, but even if they do, administration officials have shown little willingness to reopen consulates and begin issuing visas again. Each day that passes, the backlog of hundreds of thousands of immigrants grows. Because the law limits the number of visas issued in a fiscal year, many of the visas they would have received will be lost if they aren’t issued by September. 

The only positive development on legal immigration is that Biden increased the refugee cap, albeit to a lower number than he initially promised. But his unwillingness to streamline Trump- and Bush-era “extreme vetting” means that the cap will likely not be filled this year anyway. 

Democrats have unified control of Congress, the body that ultimately decides what the laws will be. Well, that’s the grade-school theory anyway, and to his credit, Biden has attempted to follow it. On day one, he sent his requirements for a bill to Congress.

While it was not as sweeping as his campaign plan, it was still broad and included a path to citizenship for almost all 11 million unauthorized immigrants and more green cards for workers and families. Congressional Democrats threw together a bill in a month that met its requirements, but even they acknowledged the bill has little hope in the Senate, where Republicans and perhaps even some moderate Democrats oppose it. No effort was made to obtain bipartisan support for it.

Instead, Biden’s party is focusing on a few narrow bills that it believes have crossover appeal: legalizations for Dreamers, farmworkers, and participants in the Temporary Protected Status program for those undocumented immigrants who have been granted temporary safety from instability at home. 

What Biden will give up to get these discrete bills to his desk remains unclear. His immigration bill includes no new enforcement measures that would appease the GOP, and he hasn’t so far been willing to mix immigration into negotiations over his other top priorities: the COVID-19 response and economic relief. 

That’s not new. Presidents Obama and Trump both campaigned promising immigration changes. Both had the advantage of a friendly Congress. But neither wanted immigration reforms to upset prospects for their other major priorities. 

The stalemate leaves the executive branch as the most likely place for change. The Biden administration does have some ability to change policy without congressional involvement. But hopeful immigrants and employers would be wise to remember how conservative Biden has shown himself to be. 

Biden personally understands immigration policy better than almost any president in history. For decades he has played a crucial role in making it, both during his time as a senator and during his time as vice president. This understanding is certainly an asset for good governance. Unfortunately, it also probably also makes him too committed to the current system to take the drastic actions that would be needed to make that system work better. He’s also beholden to a complex interwoven system of partisan priorities that could cause him to turn his back on immigration—or enthusiastically embrace it—later in his presidency, depending on what else is going on.

Many advocates were hopeful that the wave of outrage against Trump’s abuses would translate into more than just a reversal of those policies. He could streamline or remove onerous regulations and interpret ambiguous laws in the favor of approving applicants, rather than denying them. Maybe these things will happen eventually. The end of the pandemic will undoubtedly help. But so far, the Biden administration seems to have little appetite to wield the powers of the executive on behalf of immigrants as aggressively as Trump did against them. 

Immigration law is a complicated, inhumane mess. But Congress has given the president vast authority to interpret and implement the law in simple and humane ways. Biden currently seems reluctant to use it, whether out of shortsighted political calculation or a lack of genuine belief in the goal.

But that’s 2021 Biden. Who can predict what 2022 Biden will do, or any of the Bidens who will come after him.

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Trump’s Messy Pardon Spree Left Too Many Behind. Biden Must Do Better.

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Shortly after 1 a.m. EST on January 20, the White House released the final list of pardons and commutations of President Donald Trump’s term. It was the end, for better or worse, of months of feverish work by clemency advocates, federal inmates, and their families to secure clemency before Trump left office.

Some received a second shot at life. Of the 143 pardons and commutations, major newspaper headlines focused, understandably, on those of cronies, rappers, and political allies, but the list also included dozens of obscure cases of vindictive prosecutions and excessive sentences.

One of those was David Barren, whose case Reason wrote about in 2017. Barren was serving a life sentence for a nonviolent drug crime when President Barack Obama commuted his sentence. However, Obama only commuted Barren’s sentence from life to 30 years, which would have left him behind bars until he was in his early 70s.

Chris Young, whose case Reason profiled in 2018, also received clemency from Trump. Young was sentenced to life in federal prison for his role in a drug trafficking ring. Because he turned down a plea deal and exercised his constitutional right to trial, prosecutors used a federal “three strikes” law to automatically enhance his sentence to life. None of his co-defendants, including the alleged ringleader, received life.

Young’s life sentence had actually been reduced to 14 years after his lawyer, Brittany Barnett won a rare motion challenging his sentence, but he still had several years left behind bars. According to Barnett, Young was in solitary confinement under the Federal Bureau of Prisons’ COVID-19 quarantine protocols when the White House released the list.

“He was in the hole for 97 days awaiting transfer to a lower security facility, and that’s where he got the news,” Barnett says. “I was there to pick him up when he came out around 3:30, so he found out about two and a half hours before his release.”

Weldon Angelos and Amy Povah, both of whom served draconian drug sentences before being released early and becoming criminal justice advocates, received pardons.

For others, though, the early morning of January 20 was a crushing disappointment.

“On the 20th, I had to make a lot of really horrible calls to people,” says Shon Hopwood, a Georgetown Law professor and clemency advocate.

Forbes reported on the case of Luke Scarmazzo, who is serving a 22-year sentence for operating a medical marijuana dispensary in California. Clemency advocates were given strong indications that Scarmazzo would be freed, so much so that Scarmazzo had his bags packed and ready to go on January 19. His family had started preparing for his arrival. On January 20, he was still sitting in prison as President Joe Biden was inaugurated. 

Likewise, Politico reported that advocates were pushing the White House to commute Rufus Rochell’s 40-year federal prison sentence for possession and conspiracy to distribute crack cocaine. Rochell’s supporters included his former prison pal Conrad Black, a financier whom Trump had pardoned in 2019, but Rochell’s commutation inexplicably never materialized.

Among the words clemency advocates used to describe the last months of the Trump White House’s pardon process in interviews with Reason were “haphazard,” “chaos,” “a circus,” and “completely random.” In one commutation case from December, a woman didn’t know that her terms of supervised release had been commuted by the president until a Reason reporter texted her.

Criminal justice advocates say the Biden administration now has an opportunity to avoid the pitfalls of both the Obama and Trump White House’s clemency efforts, and they are pushing the White House to embrace a more muscular, independent pardon process. 

In late January, the American Civil Liberties Union took out a six-figure ad buy urging Biden to commute the sentences of 25,000 federal inmates who are incarcerated under outdated statutes, elderly or medically vulnerable, or incarcerated for drug offenses.

Many criminal justice advocates also say the Biden administration should move the pardon review process out of the Justice Department, where petitions are typically vetted by the Office of the Pardon Attorney.

“It makes absolutely no sense for these petitions to go through multiple layers of review within the Department of Justice, the very department that prosecuted them in the first place,” Barnett says. “There’s a huge conflict of interest there.”

The Obama administration launched a large-scale clemency initiative aimed at nonviolent drug offenders, but criminal justice advocates were deeply disappointed by the results. Although the initiative ultimately led to clemencies for 1,715 federal inmates, foot-dragging and resistance from the Justice Department, including then-Deputy Attorney General Sally Yates, hamstrung the process and led to many worthy cases being denied.

“If Sally Yates couldn’t be objective, I have a hard time seeing how we can rely on someone within the system, within DOJ, to be objective about [clemency],” Hopwood says. “On the flip side, the Trump process was even worse because you had to rely on criminal justice reform organizations—that part doesn’t bother me so much, but so much of it was about access.”

The Trump White House boxed out the Office of the Pardon Attorney and instead relied on an informal task force of advisers and trusted advocates to bring forward worthy clemency candidates.

The upshot of this was several people that the Obama administration passed over were granted commutations, such as Alice Johnson, a grandmother who was serving a life sentence for a nonviolent drug crime until mega-celebrity Kim Kardashian made a personal appeal to Donald Trump.

The downside was that the regular pardon process ground to a halt. While the Trump White House held up individual cases like Johnson’s as evidence of unfair drug sentences and the human capacity for redemption, it never showed much interest in applying that rhetoric to the larger federal prison population. As a result, Biden has inherited an executive branch with roughly 14,000 pending clemency and pardon petitions, an all-time high.

“That’s an untenable, unacceptable position you’re leaving,” says Brett Tolman, a former federal prosecutor and criminal justice advocate who lobbied the Trump White House on clemency cases. “Thousands of people just feel like applying for [clemency] means nothing.”

And although the Trump White House took its clemency program out of the Justice Department, advocates say interference still torpedoed deserving clemency petitions.

David Safavian, director of the American Conservative Union Foundation’s Nolan Center for Justice, wrote in a February Facebook post that the White House counsel “did everything possible to delay, obfuscate, undermine or stop petitions from reaching the President’s desk.”

“The bottom line is that [the White House counsel] and DOJ colluded to prevent President Trump from doing the right thing,” Safavian continued. “And they were successful in far too many righteous cases.”

For example, Hopwood himself was on a shortlist of potential pardon candidates. Hopwood served 11 years in federal prison for bank robbery. While inside, he became a talented jailhouse lawyer and had two petitions for certiorari accepted by the Supreme Court. After his release, he passed the bar and became a professor at Georgetown Law. Hopwood didn’t advocate on his own behalf, but several others pushed his case.

“I was begging them to get [Hopwood] a pardon,” says Safavian. “Do you get any better of a case where someone has turned their life around and really done something spectacular after serving a long prison sentence? I mean, good grief.”

Hopwood says he’s relieved he didn’t get a pardon, though.

“Understand that from my perspective, the worst possible result for me would have been me getting a grant of a pardon and none of my clients are getting it,” he says.

Hopwood’s fear illustrates the other downside of the Trump White House’s approach to clemency: It became an access game, and, like everything else in Trump’s universe, it fostered at least the appearance of being transactional.

“Whether or not someone gets a merit review of their case should not depend on whether they know Kim Kardashian or whether they know a lobbyist that used to work at the Trump White House or, for that matter, whether they know me,” Hopwood says. “That’s not a great system for going forward if we want everyone to have equal access to clemency.”

Some paid tens of thousands of dollars to lobbyists to try and secure clemencies from the White House. The Washington Post reported that Matt Schlapp, chairman of the American Conservative Union, made $750,000 for about a month of lobbying work. Jack Burkman, a cartoonishly incompetent conservative political operative, charged $92,000 for work on behalf of a client who didn’t receive a pardon. (Tolman took on paying clients as well, but he notes that he also worked on more than 20 pro bono cases and charged far less than what his regular hourly rate would have been.)

Although Trump’s pardons of underlings led to calls to restrict the president’s pardon powers, Tolman says that would be a grave mistake.

“It’s rough because it’s clouded by Trump doing the pardons for his friends and colleagues,” he says. “I don’t think that it’s wrong to criticize that because it does highlight a double-edged sword, but we need pardons and need to overhaul this system if regular people are going to have consideration.”

Several other clemency advocates, such as Mark Holden, chairman of the conservative group Americans for Prosperity, support the idea of the White House creating a blue-ribbon committee to vet clemency petitions.

The Biden administration also has the opportunity for broader, categorical clemencies. Holden says the White House should look at felonies for simple possession of marijuana and other drugs.

Barnett, Chris Young’s attorney, estimates that there are still 600 to 700 federal inmates sentenced to die in federal prison under the same “three strikes” enhancement—known as an 851 enhancement—that was used against Young. Congress reduced those penalties when it passed the First Step Act in 2018, but those changes weren’t retroactive, meaning they have no effect on those already sentenced.

“We have people serving life sentences today under yesterday’s drug laws,” Barnett says. “It’s very disheartening to see all these 851 lifers where, if the law was simply retroactive, they would be walking out of the door.”

And there are the countless other incarcerated and formerly incarcerated people whose stories have yet to be told.

“It’s horrifying what we’ve done in our country with the war on drugs the last 40 something years,” Holden says. “But there are so many stories out there about people who were put in for life and then changed.”

“That’s why it’s important with these clemencies to tell these stories,” Holden continues. “We did some of that, but it wasn’t done enough. I hope that [the Biden administration] is going to be focused on that and tell these stories about people.”

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Trump’s Messy Pardon Spree Left Too Many Behind. Biden Must Do Better.

TrumpCommute_1161x653

Shortly after 1 a.m. EST on January 20, the White House released the final list of pardons and commutations of President Donald Trump’s term. It was the end, for better or worse, of months of feverish work by clemency advocates, federal inmates, and their families to secure clemency before Trump left office.

Some received a second shot at life. Of the 143 pardons and commutations, major newspaper headlines focused, understandably, on those of cronies, rappers, and political allies, but the list also included dozens of obscure cases of vindictive prosecutions and excessive sentences.

One of those was David Barren, whose case Reason wrote about in 2017. Barren was serving a life sentence for a nonviolent drug crime when President Barack Obama commuted his sentence. However, Obama only commuted Barren’s sentence from life to 30 years, which would have left him behind bars until he was in his early 70s.

Chris Young, whose case Reason profiled in 2018, also received clemency from Trump. Young was sentenced to life in federal prison for his role in a drug trafficking ring. Because he turned down a plea deal and exercised his constitutional right to trial, prosecutors used a federal “three strikes” law to automatically enhance his sentence to life. None of his co-defendants, including the alleged ringleader, received life.

Young’s life sentence had actually been reduced to 14 years after his lawyer, Brittany Barnett won a rare motion challenging his sentence, but he still had several years left behind bars. According to Barnett, Young was in solitary confinement under the Federal Bureau of Prisons’ COVID-19 quarantine protocols when the White House released the list.

“He was in the hole for 97 days awaiting transfer to a lower security facility, and that’s where he got the news,” Barnett says. “I was there to pick him up when he came out around 3:30, so he found out about two and a half hours before his release.”

Weldon Angelos and Amy Povah, both of whom served draconian drug sentences before being released early and becoming criminal justice advocates, received pardons.

For others, though, the early morning of January 20 was a crushing disappointment.

“On the 20th, I had to make a lot of really horrible calls to people,” says Shon Hopwood, a Georgetown Law professor and clemency advocate.

Forbes reported on the case of Luke Scarmazzo, who is serving a 22-year sentence for operating a medical marijuana dispensary in California. Clemency advocates were given strong indications that Scarmazzo would be freed, so much so that Scarmazzo had his bags packed and ready to go on January 19. His family had started preparing for his arrival. On January 20, he was still sitting in prison as President Joe Biden was inaugurated. 

Likewise, Politico reported that advocates were pushing the White House to commute Rufus Rochell’s 40-year federal prison sentence for possession and conspiracy to distribute crack cocaine. Rochell’s supporters included his former prison pal Conrad Black, a financier whom Trump had pardoned in 2019, but Rochell’s commutation inexplicably never materialized.

Among the words clemency advocates used to describe the last months of the Trump White House’s pardon process in interviews with Reason were “haphazard,” “chaos,” “a circus,” and “completely random.” In one commutation case from December, a woman didn’t know that her terms of supervised release had been commuted by the president until a Reason reporter texted her.

Criminal justice advocates say the Biden administration now has an opportunity to avoid the pitfalls of both the Obama and Trump White House’s clemency efforts, and they are pushing the White House to embrace a more muscular, independent pardon process. 

In late January, the American Civil Liberties Union took out a six-figure ad buy urging Biden to commute the sentences of 25,000 federal inmates who are incarcerated under outdated statutes, elderly or medically vulnerable, or incarcerated for drug offenses.

Many criminal justice advocates also say the Biden administration should move the pardon review process out of the Justice Department, where petitions are typically vetted by the Office of the Pardon Attorney.

“It makes absolutely no sense for these petitions to go through multiple layers of review within the Department of Justice, the very department that prosecuted them in the first place,” Barnett says. “There’s a huge conflict of interest there.”

The Obama administration launched a large-scale clemency initiative aimed at nonviolent drug offenders, but criminal justice advocates were deeply disappointed by the results. Although the initiative ultimately led to clemencies for 1,715 federal inmates, foot-dragging and resistance from the Justice Department, including then-Deputy Attorney General Sally Yates, hamstrung the process and led to many worthy cases being denied.

“If Sally Yates couldn’t be objective, I have a hard time seeing how we can rely on someone within the system, within DOJ, to be objective about [clemency],” Hopwood says. “On the flip side, the Trump process was even worse because you had to rely on criminal justice reform organizations—that part doesn’t bother me so much, but so much of it was about access.”

The Trump White House boxed out the Office of the Pardon Attorney and instead relied on an informal task force of advisers and trusted advocates to bring forward worthy clemency candidates.

The upshot of this was several people that the Obama administration passed over were granted commutations, such as Alice Johnson, a grandmother who was serving a life sentence for a nonviolent drug crime until mega-celebrity Kim Kardashian made a personal appeal to Donald Trump.

The downside was that the regular pardon process ground to a halt. While the Trump White House held up individual cases like Johnson’s as evidence of unfair drug sentences and the human capacity for redemption, it never showed much interest in applying that rhetoric to the larger federal prison population. As a result, Biden has inherited an executive branch with roughly 14,000 pending clemency and pardon petitions, an all-time high.

“That’s an untenable, unacceptable position you’re leaving,” says Brett Tolman, a former federal prosecutor and criminal justice advocate who lobbied the Trump White House on clemency cases. “Thousands of people just feel like applying for [clemency] means nothing.”

And although the Trump White House took its clemency program out of the Justice Department, advocates say interference still torpedoed deserving clemency petitions.

David Safavian, director of the American Conservative Union Foundation’s Nolan Center for Justice, wrote in a February Facebook post that the White House counsel “did everything possible to delay, obfuscate, undermine or stop petitions from reaching the President’s desk.”

“The bottom line is that [the White House counsel] and DOJ colluded to prevent President Trump from doing the right thing,” Safavian continued. “And they were successful in far too many righteous cases.”

For example, Hopwood himself was on a shortlist of potential pardon candidates. Hopwood served 11 years in federal prison for bank robbery. While inside, he became a talented jailhouse lawyer and had two petitions for certiorari accepted by the Supreme Court. After his release, he passed the bar and became a professor at Georgetown Law. Hopwood didn’t advocate on his own behalf, but several others pushed his case.

“I was begging them to get [Hopwood] a pardon,” says Safavian. “Do you get any better of a case where someone has turned their life around and really done something spectacular after serving a long prison sentence? I mean, good grief.”

Hopwood says he’s relieved he didn’t get a pardon, though.

“Understand that from my perspective, the worst possible result for me would have been me getting a grant of a pardon and none of my clients are getting it,” he says.

Hopwood’s fear illustrates the other downside of the Trump White House’s approach to clemency: It became an access game, and, like everything else in Trump’s universe, it fostered at least the appearance of being transactional.

“Whether or not someone gets a merit review of their case should not depend on whether they know Kim Kardashian or whether they know a lobbyist that used to work at the Trump White House or, for that matter, whether they know me,” Hopwood says. “That’s not a great system for going forward if we want everyone to have equal access to clemency.”

Some paid tens of thousands of dollars to lobbyists to try and secure clemencies from the White House. The Washington Post reported that Matt Schlapp, chairman of the American Conservative Union, made $750,000 for about a month of lobbying work. Jack Burkman, a cartoonishly incompetent conservative political operative, charged $92,000 for work on behalf of a client who didn’t receive a pardon. (Tolman took on paying clients as well, but he notes that he also worked on more than 20 pro bono cases and charged far less than what his regular hourly rate would have been.)

Although Trump’s pardons of underlings led to calls to restrict the president’s pardon powers, Tolman says that would be a grave mistake.

“It’s rough because it’s clouded by Trump doing the pardons for his friends and colleagues,” he says. “I don’t think that it’s wrong to criticize that because it does highlight a double-edged sword, but we need pardons and need to overhaul this system if regular people are going to have consideration.”

Several other clemency advocates, such as Mark Holden, chairman of the conservative group Americans for Prosperity, support the idea of the White House creating a blue-ribbon committee to vet clemency petitions.

The Biden administration also has the opportunity for broader, categorical clemencies. Holden says the White House should look at felonies for simple possession of marijuana and other drugs.

Barnett, Chris Young’s attorney, estimates that there are still 600 to 700 federal inmates sentenced to die in federal prison under the same “three strikes” enhancement—known as an 851 enhancement—that was used against Young. Congress reduced those penalties when it passed the First Step Act in 2018, but those changes weren’t retroactive, meaning they have no effect on those already sentenced.

“We have people serving life sentences today under yesterday’s drug laws,” Barnett says. “It’s very disheartening to see all these 851 lifers where, if the law was simply retroactive, they would be walking out of the door.”

And there are the countless other incarcerated and formerly incarcerated people whose stories have yet to be told.

“It’s horrifying what we’ve done in our country with the war on drugs the last 40 something years,” Holden says. “But there are so many stories out there about people who were put in for life and then changed.”

“That’s why it’s important with these clemencies to tell these stories,” Holden continues. “We did some of that, but it wasn’t done enough. I hope that [the Biden administration] is going to be focused on that and tell these stories about people.”

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The Fairness Doctrine Was the Most Deserving Target of Rush Limbaugh’s Rage

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Rush Limbaugh’s half-century career in radio began as a 16-year-old at a small station in Cape Girardeau, Missouri, in 1967. (If you just muttered to yourself, “Where?” then you’ve already got a good sense of how unlikely Rush’s rise to prominence was.) Notably, one of Limbaugh’s first jobs in radio was in community ascertainment, which meant canvassing local businesses, churches, and interest groups to ask about the kinds of content they wanted to hear on the airwaves. The programs produced because of these expeditions were then parked on the least desirable time slots of the week, like Sunday morning.

Station owners were not, after all, truly owners; they were merely borrowers, temporarily using a slice of the electromagnetic spectrum via a license granted to them by the federal government. That license came with strings attached.

The Federal Communications Commission (FCC) required community canvassing as part of its requirement that stations operate in the “public interest, convenience, or necessity.” License holders couldn’t just air whatever content they wanted (or what they thought their listeners wanted). No, they had a vague responsibility to air programming that their listeners needed, and to do so whether or not listeners actually, well, listened. 

In the 1960s, the FCC began enforcing another outgrowth of the public interest mandate which was known as the Fairness Doctrine. It stipulated that station owners had an obligation to provide coverage of “controversial issues of public importance”—like current events, policy debates, and so on—and do so without exclusively representing a single point of view. If, say, a station aired a program that criticized the U.S. conduct of the war in Vietnam, then it had an obligation to air someone supporting the war effort. Long before Fox News adopted the slogan, the FCC sought to make the airwaves a “fair and balanced” medium.

The FCC’s commitment to the concept proved equally notional. In the early 1960s, the Kennedy administration quickly realized that the Fairness Doctrine could be useful as a tool for suppressing political dissent. If the fairness mandate was applied selectively—only forcing stations with conservative programming to increase the amount of liberal programming they aired and not vice versa—the administration could simultaneously punish their right-wing critics and extract free pro-administration airtime. 

I tell that story in detail in my book The Radio Right: How a Band of Broadcasters Took on the Federal Government and Built the Modern Conservative Movement, but suffice it to say here that the Fairness Doctrine enabled the most successful government censorship campaign of the last half century. It might, with greater accuracy, be titled the Unfairness Doctrine given its use to suppress political dissent and protect the lies of incumbents from both major parties including Presidents Kennedy, Johnson, and Nixon.

By the early 1970s, the targeted conservative broadcasters had largely been silenced, but the memory of the Fairness Doctrine era left an impression on a young Rush Limbaugh. It remained one of his most common topics of conversation until the end of his life; he mentioned the Fairness Doctrine on more than 140 episodes of his show since 2007. As he said in 2010 during a previous wave of interest in reviving the mandate, “Just like the Fairness Doctrine, I know what these guys have in mind, I know what their game plan is….Use intimidation, license renewal, fines, all this kind of thing.” These were the tactics used in the 1960s to suppress conservative broadcasters, something that Limbaugh never forgot.

Indeed, Limbaugh owed his rapid rise to the repeal of the Fairness Doctrine by the Reagan administration in 1987. Limbaugh had been hosting a political talk radio show for a few years prior, but it wasn’t until 1988 that a radio network executive decided to test the post-Fairness Doctrine waters by syndicating The Rush Limbaugh Show on 56 stations nationwide (which expanded to more than 600 stations by the mid-1990s).

It is also worth noting that talk radio in the 1980s was a much more ideologically diverse industry than it is today, with many hosts from both the political left and right. Contrary to conservative talk radio hosts who explain their dominance by the existence of a silent majority of average joe listeners, ironically it was the federal government that boosted right-wing dominance of talk radio.

As historian Brian Rosenwald argues, left-wing talk radio hosts had to compete for listeners with government-subsidized, center-left NPR affiliates, while right-wing hosts had a clearer competitive field. Station owners could guarantee a larger audience to advertisers simply by picking right-wing instead of left-wing talk radio programs. Talk radio’s conservative bent is the unintended product of the government’s halfhearted attempt to create a nationalized broadcasting system in the 1970s. (Though I wouldn’t expect a “Rush was Made Possible By Listeners like You” slogan to appear on a complimentary NPR tote bag any time soon.)

Limbaugh’s death comes at a time of increased interest in creating Fairness Doctrine-style regulations for the internet. The broadcast Fairness Doctrine—which was dependent on the legal fiction of spectrum scarcity—can’t be directly applied to the unlicensed and unlimited World Wide Web. But where there is a political will, there is usually a regulatory way. In this case, those seeking to guarantee political neutrality could tinker with the Section 230 platform liability waiver to mandate something with a similar effect as the Fairness Doctrine.

The passing of Rush Limbaugh is a reminder that the chilling effect of the Fairness Doctrine era is passing out of living memory. But while Limbaugh’s concerns about a resurrected mandate might have sounded paranoid in the 1990s and 2000s, they feel somewhat prescient in 2021.

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The Fairness Doctrine Was the Most Deserving Target of Rush Limbaugh’s Rage

upiphotostwo785548

Rush Limbaugh’s half-century career in radio began as a 16-year-old at a small station in Cape Girardeau, Missouri, in 1967. (If you just muttered to yourself, “Where?” then you’ve already got a good sense of how unlikely Rush’s rise to prominence was.) Notably, one of Limbaugh’s first jobs in radio was in community ascertainment, which meant canvassing local businesses, churches, and interest groups to ask about the kinds of content they wanted to hear on the airwaves. The programs produced because of these expeditions were then parked on the least desirable time slots of the week, like Sunday morning.

Station owners were not, after all, truly owners; they were merely borrowers, temporarily using a slice of the electromagnetic spectrum via a license granted to them by the federal government. That license came with strings attached.

The Federal Communications Commission (FCC) required community canvassing as part of its requirement that stations operate in the “public interest, convenience, or necessity.” License holders couldn’t just air whatever content they wanted (or what they thought their listeners wanted). No, they had a vague responsibility to air programming that their listeners needed, and to do so whether or not listeners actually, well, listened. 

In the 1960s, the FCC began enforcing another outgrowth of the public interest mandate which was known as the Fairness Doctrine. It stipulated that station owners had an obligation to provide coverage of “controversial issues of public importance”—like current events, policy debates, and so on—and do so without exclusively representing a single point of view. If, say, a station aired a program that criticized the U.S. conduct of the war in Vietnam, then it had an obligation to air someone supporting the war effort. Long before Fox News adopted the slogan, the FCC sought to make the airwaves a “fair and balanced” medium.

The FCC’s commitment to the concept proved equally notional. In the early 1960s, the Kennedy administration quickly realized that the Fairness Doctrine could be useful as a tool for suppressing political dissent. If the fairness mandate was applied selectively—only forcing stations with conservative programming to increase the amount of liberal programming they aired and not vice versa—the administration could simultaneously punish their right-wing critics and extract free pro-administration airtime. 

I tell that story in detail in my book The Radio Right: How a Band of Broadcasters Took on the Federal Government and Built the Modern Conservative Movement, but suffice it to say here that the Fairness Doctrine enabled the most successful government censorship campaign of the last half century. It might, with greater accuracy, be titled the Unfairness Doctrine given its use to suppress political dissent and protect the lies of incumbents from both major parties including Presidents Kennedy, Johnson, and Nixon.

By the early 1970s, the targeted conservative broadcasters had largely been silenced, but the memory of the Fairness Doctrine era left an impression on a young Rush Limbaugh. It remained one of his most common topics of conversation until the end of his life; he mentioned the Fairness Doctrine on more than 140 episodes of his show since 2007. As he said in 2010 during a previous wave of interest in reviving the mandate, “Just like the Fairness Doctrine, I know what these guys have in mind, I know what their game plan is….Use intimidation, license renewal, fines, all this kind of thing.” These were the tactics used in the 1960s to suppress conservative broadcasters, something that Limbaugh never forgot.

Indeed, Limbaugh owed his rapid rise to the repeal of the Fairness Doctrine by the Reagan administration in 1987. Limbaugh had been hosting a political talk radio show for a few years prior, but it wasn’t until 1988 that a radio network executive decided to test the post-Fairness Doctrine waters by syndicating The Rush Limbaugh Show on 56 stations nationwide (which expanded to more than 600 stations by the mid-1990s).

It is also worth noting that talk radio in the 1980s was a much more ideologically diverse industry than it is today, with many hosts from both the political left and right. Contrary to conservative talk radio hosts who explain their dominance by the existence of a silent majority of average joe listeners, ironically it was the federal government that boosted right-wing dominance of talk radio.

As historian Brian Rosenwald argues, left-wing talk radio hosts had to compete for listeners with government-subsidized, center-left NPR affiliates, while right-wing hosts had a clearer competitive field. Station owners could guarantee a larger audience to advertisers simply by picking right-wing instead of left-wing talk radio programs. Talk radio’s conservative bent is the unintended product of the government’s halfhearted attempt to create a nationalized broadcasting system in the 1970s. (Though I wouldn’t expect a “Rush was Made Possible By Listeners like You” slogan to appear on a complimentary NPR tote bag any time soon.)

Limbaugh’s death comes at a time of increased interest in creating Fairness Doctrine-style regulations for the internet. The broadcast Fairness Doctrine—which was dependent on the legal fiction of spectrum scarcity—can’t be directly applied to the unlicensed and unlimited World Wide Web. But where there is a political will, there is usually a regulatory way. In this case, those seeking to guarantee political neutrality could tinker with the Section 230 platform liability waiver to mandate something with a similar effect as the Fairness Doctrine.

The passing of Rush Limbaugh is a reminder that the chilling effect of the Fairness Doctrine era is passing out of living memory. But while Limbaugh’s concerns about a resurrected mandate might have sounded paranoid in the 1990s and 2000s, they feel somewhat prescient in 2021.

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Superman Contends with Parenthood Along with Villainy in New Series

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Superman & Lois. The CW Tuesday, February 23, 9 p.m.

I have a damning confession to make. Though I’m a TV critic in an entertainment world rife with superheroes, I haven’t laid eyes on Superman—not in a TV show, a movie, a video game, or comic book—in more than 40 years. (And then only because a journalist friend advised me that the movie Superman, with Christopher Reeve, included Daily Planet editor Perry White’s explanation of what made Clark Kent such a great reporter: He was “the fastest typist I’ve ever seen.”)

Otherwise, my knowledge of the character is pretty much limited to the old 1950s TV series, which my elementary-schoolkid pals and I watched endlessly in syndication, laughing ourselves into tears as Superman busted such threats to the American way of life as a rogue ventriloquist’s dummy, some Haitian voodoo priests and even—egad! —a crooked professional wrestler. We lost interest when we realized Superman was never going to use his X-ray vision to look under Lois Lane’s clothes. (We continued to hold out hope for those X-Ray Spex we saw in ads in the back of comic books.)

In the years since, I’ve missed about 200 Superman movies and TV shows, and that’s only counting those that have the word “Superman” in the title—when you start adding  Superboys and Supergirls and Superdogs (seriously), the numbers turn googolesque. I am, generally speaking, unrepentant about this, though I’ll confess to an occasional twinge of longing to see Superman and the Mole Men, in which a grungy race of underground creatures wield a death-ray thingy which looked alarmingly like my mom’s Electrolux vacuum.

So I wasn’t expecting much out of The CW’s Superman & Lois, the big guy’s latest iteration. Instead, you can color me amazed. The ageless Man of Steel has leapt not over tall buildings at a single bound, but an entire generation. At the cusp of middle age, he’s got money problems, sullen teenagers, carping in-laws and a restless wife. For the first time ever, he’s getting a taste of the inevitability facing a substantial number of his fans: Getting old is not for wimps.

Not that Superman & Lois isn’t planted squarely with The CW’s Arrowverse, the shared universe of DC Comics superheroes that the network began building a decade ago with Arrow and now numbers six series. It even features familiar faces in its title roles; Tyler Hoechlin and Elizabeth Tulloch have been playing Clark Kent and Lois Lane as recurring characters on CW shows like Supergirl and The Flash for several years.

But in Superman & Lois, they’re well past the incognito-superhero-and-suspicious-ingenue-reporter stage. They’re married, with twin sons on the verge of starting high school and already fully immersed in the mom-and-dad-bashing ethos of teenage life. “You may have been sent here to be some kind of hero,” declares one of the boys to his dad, “but you sure as hell weren’t sent here to be a father.”

Less brutally, perhaps, but just as pointedly, Lois shares the kids’ conviction that Clark is away from home too much, working double-time as a reporter by day and then donning the superhero tights at night. Even his sweet old human mother back in little Smallville joins in the chorus of carping about his late hours. “I do have a responsibility to the world, Mom,” wearily replies Clark, just back from stopping the meltdown of a nuclear power plant.

He doesn’t mention the latest round of newsroom layoffs at his paper, the Daily Planet, which even with its endless stream of Superman scoops (written by Lois in splendidly blithe disregard for any known code of journalism ethics), faces declining circulation and increasing pressure to produce clickbait crap. Or maybe fake news: “People quit reading that paper because you reporters can’t keep your politics to yourselves,” snipes one of Clark’s friends.

And his worse-for-wear mom says nothing of the troubles in Smallville, an economic moonscape where trailer-park meth labs are the only growth industry and a predatory zillionaire is gobbling up all the foreclosed farms. Like a lot of Americans taking their first steps onto the downhill side of middle age, Clark and Lois feel the melancholia and menace of a world closing in.  “When we were dreaming about having a family,” murmurs a forlorn Lois in an unguarded moment, “it didn’t look like this, did it?”

To be sure, Superman & Lois is not some do-not-go-gentle-into-that-good-Kryptonite wallow in gerontologic despair. It has plenty of conventional superhero plots, all imaginative and well-crafted. (That nuclear power plant mess was no one-off, but the work of a serial melt-downer who appears to have a grudge against Superman.) It’s not above having a little straight-faced fun with itself—I loved a scene where Clark super-slaps around a vending machine that refused to turn loose a bag of potato chips. And the acting never turns hacky or camp. In particular, Jordan Elsass (Little Fires Everywhere) and stage actor Alex Garfin as Clark and Lois’ kids manage to seem troubled without turning into martyred teenage drama queens.

Overall, the show—or at least its pilot episode, the only one The CW made available—manages the extraordinary feat of appealing to young genre fans as well striking a chord with their parents, even those still wondering if modern technology can’t produce a pair of X-Ray Spex that really work. As an embroidered sampler on the Kent family home in Smallville observes, “IT ALL WENT BY SO FAST.”

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