Reclaiming Justice

Democrats have lost big battles in defense of our ideals.

George W. Bush has been permitted to detain people at his whim, to engage in extraordinary rendition, to torture prisoners, to bypass the Courts to obtain wiretaps, to use the secrecy of the White House to deceive the public, and more with impunity, while courts fumble around unable to act to stop him. The protection against cruel and unusual punishments has been virtually eliminated by a serious of bad Supreme Court rulings. Protections against wrongful conviction through habeas corpus have wilted in the face of bureacratic obsessiveness. Juries have been skewed by a doctrine that allows only pro-conviction biased jurors (the "death qualified") to sit in capital cases. The federal courts charged with enforcing civil rights in areas like employment and reigning in corporate violations of laws designed to protect workers and consumers have been flooded with judges who don't believe in the laws that they are charged with enforcing. It has become harder and harder to hold government officials liable for violations of civil rights.

What can Democrats do to reverse these trends? Here are twelve pieces of legislation that could improve the situation, without amending the constitution, and without judicial appointments, without executive action, and without an impeachment proceeding. This may take time, particularly when veto threats loom, but it is a reasonable agenda. All twelve measures are independent of each other. Any one, or any major subpiece of one, can be enacted without impeding the rest of the agenda.

1. Remove harsh and redundant federal criminal laws, especially for drug offenses, from the statute books, in the course of a codification of fedreal criminal law.

Just because Congress has the power under the interstate commerce clause to do anything under the sun, doesn't mean that it should. Limit the federal role in drug enforcement to transportation of drugs across international and state boundaries and agreements to do so. It is not the place of the federal government to enforce laws against street corner drug dealing. Similarly, it is not the place of the federal government to stop what are almost always intrastate bank robberies. The FBI crime labs can still play a supporting role for strapped local departments, but the prosecutions should be local and investigations should be led by local authorities. Federal crimes should involve either truly interstate commerce or uniquely federal crimes (e.g. immigration offenses).

Issues like medical marijuana and physician assisted suicide should be left expressly to local discretion.

Even where federal crimes do belong on the books, unreasonable mandatory minimums (and rules for intepreting who is a habitual offender and when consecutive v. concurrent sentences shall be handed down) should be moderated, in the interest of controlling the budget and in the interest of serious crimes having longer sentences than less serious crimes, as part of an overall codification of all federal crimes.

Of course, federal crimes or harsh sentences under them, can be repealed piecemeal as well, but it may make more sense as part of a general codification.

2. Repeal the U.S. Sentencing Guidelines in their entirety.

The guidelines as originally adopted are fundamentally unconstitutional, are now merely advisory and confuse the issues. The crack-powder cocaine disparity is the single largest source of racial basis in the state or federal sentencing law and has no good justification. The system is broken and needs to be jettisoned.

3. Reduce the civil diversity jurisdiction of the federal courts, not in narrow policy directed moves, but on a large scale as a matter of policy.

The place to begin is by declaring every business a citizen of every state where it has a permanent office. This removes diversity jurisdiction in the vast majority of cases involving interstate companies.

There is also no reason to retain diversity jurisdiction in cases that involve incidents that are clearly associated with a single state, such as automobile accidents. The only cases that should remain in federal court on the basis of diversity jurisdiction are cases that are necessarily multi-jurisdictional, such as large multi-state class action cases.

Alternately, a high dollar threshold could be placed on diversity cases. The current cutoff is $75,000. This could be increased to $300,000, for example.

4. Reduce the civil federal question jurisdiction of the federal courts in cases involving only private parties, not in narrow policy directed moves, but on a large scale as a matter of policy.

There is also no reason to keep in federal court cases involving the disputes between purely private parties who reside in the same state, even if they arise under federal law. For example, there is no reason that an employment discrimination case or minimum wage case involving only employees and employers should be tried in federal court, rather than in state courts.

Instead, the federal courts should be reserved for cases involving foreigners, the United States as a party, someone's violation of constitutional rights under color of state law, or a handful of other narrow exceptions where uniformity is desirable like copyright cases.

Alternately, a high dollar threshold could be placed on ordinary federal question cases. There is currently no cutoff. This could be increased to $300,000, for example.

5. Require the parole of individuals who have received the most excessive sentences under existing laws.

Enact legislation allowing for early parole of persons in certain classifications, for example, people who have served at least 10 years for a non-violent offense and had violent felonies before being arrested for their current offense, and define "violent" to include only cases in which an actual injury occured or a specific individual was threatened with violence.

Individuals who have served more than 50% of their term for a crack cocaine offense should also be entitled to parole.

6. Create a private right of action to enforce the Geneva Conventions and other treaties.

This shouldn't be a controversial law. People held in violation of the Geneva Conventions should be able to enforce their treaty rights in court. Indeed, there should be a private right of action to enforce almost all treaty rights which the United States violates.

These suits should be brought in the United States District Court for the District of Columbia, regardless of where the suits arise, and should extend to both release (habeas corpus) and money damages. Suits with more than three named Plaintiffs should be heard by three judge panels and appealable directly to the United States Surpeme Court.

7. Create an exclusionary rule of evidence gathered in violation of treaties.

Where rights of criminal defendants under international treaties are violated, an exclusionary rule applying to evidence obtained in violation of those treaties should apply, since any evidence obtained in violation of an international treaty is per se obtained in an unreasonable manner.

8. Enact an anti-kidnapping statute.

Congress should make it a crime for any employee of the United States, including those under military or intelligence authority, to kidnap an individual from a country with whom we have an extradition treaty, and should bar the prosecution or detention of any such person by the United States or at the direction of the United States or its agents.

9. Broaden liability under Section 1983.

As it stands now, governmental entities are liable for civil rights violations committed by their employees only if there is an institutional policy to violate civil rights. Instead, the standard should be the same that applies for most tort suits brought against private companies. A governmental entity should be vicariously liable for all civil rights violations of their employees, or at the very least, for all civil rights violations of employees who are not discharged from employment when the governmental entity is placed on notice of the civil rights violations, since not firing an individual, in effect, ratifies their conduct.

Moreover, governmental entities should be held liable for all violations of civil rights, not just clearly established ones, a limitation inserted to protect individuals who might not have counsel available to them as almost all governmental entities do. This would shift the focus for governmental entities from enacting policies in the Board room, to implementing policies that actually work.

10. Defund the prison at Guantanamo Bay.

Congress should terminate all appropriations for the Guantanamo Bay detention facilities and should order anyone detained there to be presented to a U.S. federal judge for disposition of his case, with anyone found not to be a bona fide prisoner of war released to their home country, if possible, and if not, into the United States.

A private right of action should be conferred on taxpayers to enforce this legislation.

11. Repeal the War on Terrorism declaration.

Now that the war in Afghanistan is over, there is no reason for a declaration of war to fight international terrorists. Existing civil law is sufficient. The eliminates any "war powers" justification outside of Iraq.

12. Simplify habeas corpus law.

At the very least, the 1996 Prisoner Litigation Reform Act and the 1996 Anti-Terrorism and Effective Death Penalty Acts should be repealed.