Columns, Justice, Lawyering

Expanding the Supreme Court

July 19, 2005 Tuesday
HEADLINE: To Improve the Supreme Court, Let’s Expand It

For the past four weeks, Senators and commentators have often used the most apocalyptic terms to describe the potential nomination of a rigid conservative to succeed Associate Justice Sandra Day O’Connor, the Supreme Court’s perennial swing voter.

While many have called on the appointment of an O’Connor clone, there has been no discussion of the danger of a court that invests such power in so few jurists. As we prepare for another bloodletting over the nomination of a new justice, Members, particularly in the House, should pause to consider whether it is time to consider long-overdue reforms of the court. Specifically, we should consider adding not one but 10 new justices to the court.

While the public views the court as an inviolate and revered institution, various academics have called for a range of reforms, from term limits for justices to limitations on their jurisdiction. Years ago, I suggested expanding the current number of Supreme Court justices to 19 members. This proposal was based on the view that our court is demonstrably and dysfunctionally too small. Continue reading “Expanding the Supreme Court” →

Columns, Congress, Constitutional Law, Justice, Politics

The Bush Administration’s Unchecked Authority

June 19, 2006 Monday

HEADLINE: Constitutional Swag, Congressional Privilege

We are in the midst of a crisis with few parallels in our nation’s history, but you would never know it by speaking with most Members of Congress. As Congress blissfully occupies itself with bread-and-circus politics such as flag-burning and same-sex marriage amendments, existing constitutional principles are being eviscerated.

Over the past six years, the Bush administration has made unprecedented intrusions into Congressional authority without any significant response, or even inquiry, by Congress.

The framers anticipated that each branch jealously would covet each other’s power. Accordingly, the Separation of Powers doctrine is based on the Madisonian principle that “ambition must be made to counteract ambition.” Continue reading “The Bush Administration’s Unchecked Authority” →

Columns, Congress, Justice, Politics

The Page Protection Act: The Path to Saving A Historic Program

October 5, 2006 Thursday

Immortalized in movies such as “Mr. Smith Goes to Washington,” Congressional pages always have represented the youthful idealism of the country. Perhaps it is that very image that attracts people like former Rep. Mark Foley (R-Fla.), who resigned after admitting he sent improper e-mails to a House page.

For those of us who served as pages, our greatest concern is not with Members like Foley (who likely will be brought to account), but with the future of this unique institution. Whatever we learn about these allegations, one thing should be clear: The system failed, yet again, to protect pages from the Members they serve. It is time to pass a Page Protection Act that creates an independent body to oversee, maintain and protect the page service. Continue reading “The Page Protection Act: The Path to Saving A Historic Program” →

Columns, Congress, Constitutional Law, Politics

Too Clever by Hafl: The D.C. Vote in Congress

January 25, 2007 Thursday

One of the most anticipated pieces of holdover legislation for the 110th Congress is the D.C. Fair and Equal House Voting Rights Act, giving the District of Columbia a single vote in the House of Representatives and balancing that Democratic vote with a fourth district for Utah. While heralded as a historic and long-overdue reform for the District’s non-voting citizens, the legislation is a constitutional and practical nightmare. It is an example of being too clever by half – trying to do the right thing without doing it in the right way. Continue reading “Too Clever by Hafl: The D.C. Vote in Congress” →

Columns, Congress, Constitutional Law, Politics

The Return of the Equal Rights Amendment

April 16, 2007 Monday

HEADLINE: The Revival of The Equal Rights Amendment

For decades, the dream of cryonics has been to freeze clinically dead people for long periods so that they can be brought back to life in the future when a cure for their fatal ailment has been found. This month, the first successful cryonic experiment occurred in Congress with the sudden resuscitation of the long-dead Equal Rights Amendment, now called the Women’s Equality Amendment. Continue reading “The Return of the Equal Rights Amendment” →

Politics, Supreme Court

Roberts the Elder

John Roberts has an understated personality, but his record will be all torpedo.

Published: September 13th, 2005

As John Roberts sits down before the Senate Judiciary Committee this week, its members will be searching to better understand the man who would become the 17th chief justice of the United States. If history is any guide, they will learn little about who John Roberts is and even less about who John Roberts will become. The problem with confirmation hearings is that, even with a forthcoming nominee, they offer only a snapshot of a jurist before he or sheenters the rarified and mind-altering world of the country’s highest court.
Senators have learned that a strange metamorphosis can occur in the walk over the east Capitol lawn to the Supreme Court building. In that short expanse, reliable conservatives have been known to transform into raging liberals, and vice versa.

Senators will, therefore, struggle with the need to know the unknowable: To paraphrase the Beatles, “Will you still need me, will you still please me, when you are 64?” Continue reading “Roberts the Elder” →

Columns, Congress, Constitutional Law, Justice

The Case for the Impeachment of Alberto Gonzales

Published August 2007 Roll Call

HEADLINE: The Case for the Impeachment of Alberto Gonzales

There is much about the current controversy over Attorney General Alberto Gonzales that would have perplexed the framers. Perhaps the most surprising would have been the relative passivity of Congress in the face of allegations of crimes by the nation’s chief law enforcement officer.

Long before the advent of special prosecutors and blue ribbon commissions, the framers created a system designed precisely for this type of situation: impeachment.

Article II, Section 4 of the Constitution expressly allows for the impeachment and conviction of any “civil officers” guilty of “high Crimes and Misdemeanors.” It is not necessary that such offenses be actual crimes for impeachment. James Madison described many acts of negligence that would be grounds for impeachment, including notably the “wanton removal of meritorious officers.”

The only Cabinet officer to be impeached was William Belknap, a former secretary of War who was charged with accepting bribes for contracts associated with the Indian Territory. The 1878 impeachment made it all the way to the Senate despite the fact that Belknap was no longer in office. While only three Senators believed him to be innocent, he narrowly escaped conviction on jurisdictional grounds by resigning from office. Belknap is buried at Arlington National Cemetery, ultimately succumbing to a “stroke of apoplexy” not long after his impeachment.

The impeachment of Cabinet officers has proved largely unnecessary because most officers gracefully have withdrawn or, when necessary, presidents have encouraged them to attend to “family matters.”

Not only has Congress given ample time and opportunity for Gonzales to step aside, it has withheld action despite highly compelling allegations of criminal conduct. On its face, the current record likely would satisfy most grand juries as sufficient to indict on at least some of the allegations. Indeed, many of Gonzales’ defenses to allegations of false statements routinely are raised by defendants in past cases – and uniformly rejected by his own department in cases such as the Scooter Libby prosecution.

This is not to say that Gonzales does not have valid defenses to make. The point of the House investigation is to determine whether impeachment is warranted, and there is ample record to justify such an inquiry. Consider just a few of the more compelling potential articles for impeachment:

Article One: Violations of Federal Criminal Provisions on Warrantless Surveillance. The National Security Agency program implemented by the Bush administration clearly and unambiguously violated the Fourth Amendment as well as federal law, which defines such warrantless surveillance as a federal crime. Yet this article could prove embarrassing to some Democratic Members who secretly were informed of the unlawful program. Moreover, the person most responsible for these crimes is the president and Democratic leaders repeatedly have stated that they will not consider any impeachment of President Bush.

Article Two: Obstruction and Misleading of Congress in the Course of Its Oversight Responsibilities. Gonzales has demonstrated a clear record of misleading Congress in its effort to investigate violations of the Constitution and international law. Examples of such conduct are numerous. For example, in his January 2005 confirmation hearing, Gonzales was asked by Sen. Russ Feingold (D-Wis.) whether the president could lawfully “authorize warrantless searches of Americans’ homes and wiretaps of their conversations.” Gonzales publicly dismissed the suggestion as merely a “hypothetical situation” when he knew the president had done precisely that for more than three years. Likewise, in April 2005, Gonzales told Congress that “there has not been one verified case of civil liberties abuse” under the USA PATRIOT Act. It was disclosed later that Gonzales had received various reports of precisely such violations, including one shortly before the hearing.

Article Three: Perjury – January 2005. The January 2005 statement constitutes an actionable allegation of perjury given the context. We have learned since then that Gonzales was deeply involved in the program as well as efforts to overcome internal critics of the program from Acting Attorney General James Comey to FBI Director Robert Mueller.

Article Four: Perjury – April 2005. Gonzales’ statement in April 2005 also is a valid basis for articles of impeachment. At the time of the statement, Gonzales was aware that many Americans opposed the act as relying too heavily on self-monitoring and self-control by the Justice Department. Finally, he was presumably aware that violations were found by internal monitors since he received various reports of those violations and those reports were directly relevant to his testimony.

Article Five: Perjury – February 2006. In a February 2006 hearing, Gonzales testified that “there has not been any serious disagreement about the [program].” In fact, we have learned that there was considerable opposition to the program that prompted the extraordinary confrontation at the sickbed of former Attorney General John Ashcroft. Indeed, it is now known that a March 10, 2004, meeting with Congressional leaders was called to inform them of such opposition and the possible need for legislation.

Article Six: Perjury – March-April 2007. On March 13, Gonzales publicly stated that he “was not involved in seeing any memos, was not involved in any discussions about what was going on” with regard to the firing of eight U.S. attorneys. Then, on April 19, he repeated this position to Congress and explained that “I haven’t talked to witnesses because … I haven’t wanted to interfere with this investigation.” These statements appear to be patently false. One of the central figures in the scandal, former Gonzales aide Monica Goodling, testified that Gonzales did question her about her recollection of the facts. Notably, she had gone to Gonzales to ask for a favor: to transfer out the office. Gonzales used this time, when Goodling most needed his intervention, to ask her about her recollection of events – questioning that Goodling stated made her feel “uncomfortable” at the time.

Article Seven: Perjury – July 2007. Most recently, Gonzales testified that a critical confrontation at Ashcroft’s hospital bed “was not about the terrorist surveillance program that the president confirmed.” He was asked about this incident given his prior statements that there was no serious disagreement over the domestic surveillance program. Gonzales’ statement has been directly contradicted by other testimony, most notably that of FBI Director Mueller.

However painful or costly such proceedings might prove, there are far greater costs in ignoring such conduct. Congress cannot continue to call on others to address this controversy. The framers gave Congress the authority to act in the face of defiant contempt or misconduct by civil officers. It should now act as the framers envisioned: fairly but firmly with the initiation of impeachment proceedings.

Jonathan Turley is the Shapiro professor of public interest law at George Washington University Law School.

Constitutional Law, Justice, Politics

Polygamy and Hypocrisy

Posted 10/3/2004

Polygamy laws expose our own hypocrisy
By Jonathan Turley
Tom Green is an American polygamist. This month, he will appeal his conviction in Utah for that offense to the United States Supreme Court, in a case that could redefine the limits of marriage, privacy and religious freedom.
If the court agrees to take the case, it would be forced to confront a 126-year-old decision allowing states to criminalize polygamy that few would find credible today, even as they reject the practice. And it could be forced to address glaring contradictions created in recent decisions of constitutional law.

For polygamists, it is simply a matter of unequal treatment under the law.

Individuals have a recognized constitutional right to engage in any form of consensual sexual relationship with any number of partners. Thus, a person can live with multiple partners and even sire children from different partners so long as they do not marry. However, when that same person accepts a legal commitment for those partners “as a spouse,” we jail them.

Likewise, someone such as singer Britney Spears can have multiple husbands so long as they are consecutive, not concurrent. Thus, Spears can marry and divorce men in quick succession and become the maven of tabloid covers. Yet if she marries two of the men for life, she will become the matron of a state prison.

Religion defines the issue

The difference between a polygamist and the follower of an “alternative lifestyle” is often religion. In addition to protecting privacy, the Constitution is supposed to protect the free exercise of religion unless the religious practice injures a third party or causes some public danger.

However, in its 1878 opinion in Reynolds vs. United States, the court refused to recognize polygamy as a legitimate religious practice, dismissing it in racist and anti-Mormon terms as “almost exclusively a feature of the life of Asiatic and African people.” In later decisions, the court declared polygamy to be “a blot on our civilization” and compared it to human sacrifice and “a return to barbarism.” Most tellingly, the court found that the practice is “contrary to the spirit of Christianity and of the civilization which Christianity has produced in the Western World.”

Contrary to the court’s statements, the practice of polygamy is actually one of the common threads between Christians, Jews and Muslims.

Deuteronomy contains a rule for the division of property in polygamist marriages. Old Testament figures such as Abraham, David, Jacob and Solomon were all favored by God and were all polygamists. Solomon truly put the “poly” to polygamy with 700 wives and 300 concubines. Mohammed had 10 wives, though the Koran limits multiple wives to four. Martin Luther at one time accepted polygamy as a practical necessity. Polygamy is still present among Jews in Israel, Yemen and the Mediterranean.

Indeed, studies have found polygamy present in 78% of the world’s cultures, including some Native American tribes. (While most are polygynists — with one man and multiple women — there are polyandrists in Nepal and Tibet in which one woman has multiple male spouses.) As many as 50,000 polygamists live in the United States.

Given this history and the long religious traditions, it cannot be seriously denied that polygamy is a legitimate religious belief. Since polygamy is a criminal offense, polygamists do not seek marriage licenses. However, even living as married can send you to prison. Prosecutors have asked courts to declare a person as married under common law and then convicted them of polygamy.

The Green case

This is what happened in the case of Green, who was sentenced to five years to life in prison. In his case, the state first used the common law to classify Green and four women as constructively married — even though they never sought a license. Green was then convicted of polygamy.

While the justifications have changed over the years, the most common argument today in favor of a criminal ban is that underage girls have been coerced into polygamist marriages. There are indeed such cases. However, banning polygamy is no more a solution to child abuse than banning marriage would be a solution to spousal abuse. The country has laws to punish pedophiles and there is no religious exception to those laws.

In Green’s case, he was shown to have “married” a 13-year-old girl. If Green had relations with her, he is a pedophile and was properly prosecuted for a child sex crime — just as a person in a monogamous marriage would be prosecuted.

The First Amendment was designed to protect the least popular and least powerful among us. When the high court struck down anti-sodomy laws in Lawrence vs. Texas, we ended decades of the use of criminal laws to persecute gays. However, this recent change was brought about in part by the greater acceptance of gay men and lesbians into society, including openly gay politicians and popular TV characters.

Such a day of social acceptance will never come for polygamists. It is unlikely that any network is going to air The Polygamist Eye for the Monogamist Guy or add a polygamist twist to Everyone Loves Raymond. No matter. The rights of polygamists should not be based on popularity, but principle.

I personally detest polygamy. Yet if we yield to our impulse and single out one hated minority, the First Amendment becomes little more than hype and we become little more than hypocrites. For my part, I would rather have a neighbor with different spouses than a country with different standards for its citizens.

I know I can educate my three sons about the importance of monogamy, but hypocrisy can leave a more lasting impression.

Justice, Politics

Microscopic Humans and Stem Cell Politics

USA TODAY
July 18, 2006 Tuesday

HEADLINE: The case for macroscopic humans;
The stem cell debate this time may be settled quickly with President Bush’s first veto. In doing so, he effectively will choose to protect microscopic masses of cells instead of actual living, breathing human beings. And that’s a travesty.

BYLINE: Jonathan Turley

BODY:

Once again, the nation has returned to the all-consuming debate over the fate of the embryonic stem cell. With the expected passage of a federal stem cell bill lifting President Bush’s harsh restrictions on federal funding, the White House has announced that he will veto the bill despite its overwhelming support among citizens and Republicans and Democrats in Congress. It will be the first veto of Bush’s presidency. All for the protection of the beguiling embryonic stem cell: a microscopic cell taken from a microscopic part of a barely perceptible mass of cells called a blastocyst, or early stage human embryo.

To get an idea of the size of the object of this controversy, consider the dot over the “i” in embryonic. I am told by Tim McCaffrey, a leading researcher of adult stem cells at George Washington University, that the dot would hold hundreds of stem cells, dozens of which would be suitable for research. It would also hold at least one blastocyst that contains the cells.

While imperceptibly small, the blastocyst is undeniably a step in the creation of life. This has turned the blastocyst into the poster (pre-)child for the movement to outlaw abortion. Abortion foes have taken the most extreme possible position in opposing any use of the blastocyst for research — converting the blastocyst into a type of “holy dot.”

Watchful eye is needed

Despite my long support for stem cell research, I am not in favor of unrestricted use of human embryonic material. There are dangers of a slippery slope if researchers could use in vitro fertilization for the sole purpose of “harvesting” such material. But the federal bill would not create such a limitless environment. Rather, it would focus on thousands of stem cells that are the byproduct of genuine in vitro procedures — used with the permission of each donor couple. These stem cell lines are routinely discarded by clinics but could be used for important scientific research.

Stem cell research could ultimately produce cures or treatments for diseases and injuries affecting an estimated 130 million citizens, including people suffering from such ailments as juvenile diabetes, Parkinson’s, ALS and spinal cord injuries. Most treatments remain years away, but stem cell treatment has already begun in Europe for people with heart and nervous system ailments. Clinical tests with animals have shown astonishing success. For example, just last month, it was reported that stem cell treatment can not only repair damaged spinal cords but also regrow them to allow paralyzed animals to walk again.

Given such proven potential, most Americans oppose the president’s restrictions on research. Seven out of 10 Americans support fully funded stem cell research. Even ultraconservative leaders such as Sen. Orrin Hatch, R-Utah, and conservative celebrities such as former first lady Nancy Reagan have opposed Bush’s ban.

Nevertheless, the president opposes even the use of discarded stem cells with the express consent of the couples. It is a position that is comprehensible only to the most extreme activists: Throw the blastocysts out but do not degrade them by extracting the cells for medical research or cures.

Treating these discarded blastocysts as if they’re some microscopic underclass is lost on millions of families with macroscopic loved ones suffering from fatal or crippling diseases. In 2004, I wrote an article on the personal costs of Bush’s policy for families such as my own. At the time, my father, Jack Turley, was fighting the rapidly advancing effects of Parkinson’s disease. On Feb. 19, 2005, time ran out for my father.

This debate is not about abstractions for millions of Americans. For me, it is about my dad. So I will not claim objectivity, nor would I want to. Once you go through the death of a loved one from one of these vicious diseases, you lose patience with the endless debate over the fate of discarded blastocysts.

A real life ended

My father was no abstraction of life. He was my best friend and the man whom I most admired in this world. With my mom and my oldest brother, Dominic, I held Dad as he died in a Chicago hospital room. In the end, he had lost so much weight that we had to bury him in one of my suits and shirts. It was the suit that I was married in — the day that we first suspected something was wrong with Dad, who suddenly could not tie his own tie. As my bride waited downstairs for the ceremony, I remember being slightly embarrassed for my proud father as I knotted his tie. It would be only the first of many increasingly degrading moments for this intensely private person.

Having gone through this nightmare, I cannot work up much sympathy for the holy-dot theory. Nor do I have much patience for the self-described “compromise” of Sen. Rick Santorum, R-Pa., an unflagging opponent to embryonic stem cell research. Facing a tough re-election campaign, Santorum has proposed a bill that calls for more study into the use of non-embryonic cells or ways to remove cells without harming the embryos — which, in the case of the clinic embryos, would then presumably be thrown into the trash “unharmed.”

I know that the loss of five years under Bush would not have made a difference for my dad. But what made me angry — what still makes me angry — is that the president and his allies make the blastocyst, not my father or other ailing citizens, the object of their obsession. They are simply immaterial to the president’s faith-based politics. But these citizens were not some vague potential for life. They lived and, what should concern the White House, they left millions of newly minted single-issue voters.

Politics

Stem Cell Politics

May 18, 2004, Tuesday, FINAL EDITION

HEADLINE: Bush’s stem-cell politics leaves Dad to wither

BYLINE: Jonathan Turley

BODY:
My father is dying from an American political disease. In a nation divided evenly between red and blue states, governmental policies have long been distorted by the gravitational pull of the extremes of the two parties.

For President Bush, policies often have been shaped by his fundamentalist and conservative religious base. While controversial, many of these policies are largely symbolic, such as his unheeded call for an amendment to ban gay marriage. The president’s policy opposing stem-cell research, however, presents a far more deadly concession — one that might secure votes, but at a prohibitive cost of human life.

Stem-cell research is back in the news after former first lady Nancy Reagan’s call this month for Bush to drop his opposition to fully funded research. Former president Ronald Reagan has advanced Alzheimer’s disease and may benefit from stem-cell research. More than 200 members of Congress (including nearly three dozen abortion-rights opponents) responded to the call and asked Bush to lift his extreme limitations on federal funding in some instances. Former presidents Gerald Ford, Jimmy Carter and Bill Clinton have also joined the chorus.

Such a change may come too late for my father. The immediate threat to him is an advanced-stage Parkinson’s disease that is sapping his strength, reducing his mobility and robbing his mind. However, it is not Parkinson’s, but politics, that has proved the greatest burden in our fight for his life.

In his self-described “compromise,” Bush said stem cells (microscopic clusters of cells often discarded by hospitals) must be protected as potential human life. The White House recently reaffirmed that Bush would not allow research to “cross a fundamental moral line.” Bush has yielded to groups such as the American Life League, which sees such research as a “deadly use of . . . human beings who are currently in their embryonic stage of development.”

The president has restricted federally funded researchers to using a small number of existing “stem-cell lines,” created before Aug. 9, 2001. From the outset, the compromise was a bit odd, because if the microscopic cells are “human beings . . . in their embryonic stage,” Bush adopted the ultimate split-the-baby solution.

If they are embryonic humans, it should hardly matter whether they were created before or after August 2001. If Bush accepts that they are not human lives, as some abortion-rights opponents accept, then the restriction is a callous political decision at the potential cost of 130 million Americans with cancer, heart disease, diabetes, Parkinson’s, Alzheimer’s, multiple sclerosis and other diseases potentially treatable — even curable — by advances from stem-cell research.

At the time of his compromise, Bush said there was an ample pool of stem-cell lines for research demands. He insisted that there were about 70 such cell lines, even though many researchers immediately denounced that number as overstated. They have been proved correct. The National Institutes of Health reported last week that there are only 11.

Bush’s policies have proved disastrous for American research that once led the world in this field. Vital federal stem-cell funding has been reduced to $ 17 million a year, forcing states to take the lead in funding research. (In comparison, the Senate has approved $ 50 million to build an indoor rain forest in Iowa.) The loss of federal support has forced some states to try to make up the difference despite crushing debts. Now, top researchers in the USA are moving abroad, where they can fully pursue their research, find breakthroughs and let European companies reap the profits.

In the end, however, the economics and the politics are matters for presidents to ponder. Most of us are left as the ultimate single-issue voters. My single issue has a name: Jack Turley.

An accomplished architect and one of a handful of students trained by the famed Ludwig Mies van der Rohe, he now struggles to maintain his dignity against a disease that first robs you of every ounce of dignity and only then takes your life.

As my father sits in Chicago, 400,000 spare embryos sit in freezers across the country. They could be used to radically speed up research in Parkinson’s and other diseases, but because of the president’s policies, these embryos are likely to be destroyed — a perverse result of protecting “embryonic humans” by discarding them.

Ultimately, every person can elect to accept or reject drugs based on this research. However, the effective bar on federally funded research imposes the president’s religious views on all of us.

I have become blind to Iraq, environmental laws, civil liberties and taxes. I have the myopia that comes with desperation. I cannot see beyond a chair in Chicago where a man sits who once carried me on his shoulders and protected me against every danger.

Part of me resents that suddenly politicians are scrambling for a change in policy because Ronald Reagan has Alzheimer’s and needs help. My dad is one of millions of towering historical figures known primarily to their families. They didn’t beat communism; they did something far more incredible and important: They raised families. They now sit, like Dad, helplessly monitoring not the progress but the politics of disease.

***

Columns, Constitutional Law, Justice

Miranda and the Supreme Court

The Washington Post
June 27, 2000, Tuesday, Final Edition

HEADLINE: ‘Miranda’–Confirmed but Barely Alive

BYLINE: Jonathan Turley

BODY:
“You have the right to remain silent . . .” It’s difficult to imagine what moviemakers would do without the required Miranda warning to top off the arrest scene in just about every cop film they produce. So yesterday’s 7 to 2 vote by the Supreme Court upholding Miranda as a constitutional principle should be a comfort to Hollywood. For criminal defendants, however, Miranda will continue to make better dramas than defenses despite yesterday’s ruling.

The survival of Miranda certainly came as a surprise to many who doubted both the decision’s original basis in the Constitution and its remaining support on a more conservative court than the one that handed down the ruling in 1966, when even Chief Justice Earl Warren could eke out only a 5 to 4 majority from a liberal court.

Yet, Warren’s most famous ruling was ultimately to be preserved by one of his most ardent critics, Chief Justice William Rehnquist. Putting to rest years of speculation over the viability and basis of the ruling, Rehnquist finally established that “Miranda is a constitutional decision” and, by extension, so are the progeny of cases that it inspired. As such, it is a rule that “Congress may not supersede legislatively.”

But despite the sweeping language of yesterday’s decision, there may be less to it than meets the eye. For while the Supreme Court is clearly unwilling to pull the plug, Miranda lingers at best on life support. In fact, the Miranda of the Warren Court died years ago. It succumbed not to a single blow of the conservative majority but to a thousand paper-cuts.

Over the years, the court has allowed a myriad of exceptions that make Miranda a mere symbolic presence in most federal cases. Because of these rulings, reversals of convictions under Miranda are relatively rare events.

For example, the court ruled in 1984 that Miranda warnings are not necessary when the police seek information “reasonably prompted by a concern for the public safety.” Under this “public safety exception,” the police can question a suspect about the location of a gun and then use the evidence against him in court.

Likewise, the court has limited the meaning of “custodial questioning” that triggers the Miranda protection. In a 1977 burglary case, the court found that Miranda did not apply when the chief suspect was “invited” to come to the police station to discuss the crime.

Once a person is in “custody,” the court has narrowed the definition of “interrogation” by holding that “voluntary statements” are not protected, even when made in response to statements by the police. Thus, in a 1980 case a suspect was arrested for murder, and the officers engaged in an anguished discussion of the possibility that children from a nearby school for the handicapped might find the shotgun used in the crime. The suspect promptly incriminated himself by telling them where the gun was. The court held that the officers could not have reasonably believed they would get such a response from the suspect.

Even after “interrogation” begins, the court has allowed for police to secure waivers through acts of deception. For example, the court upheld a waiver of Miranda rights in a 1986 murder case despite the fact that the police lied to a lawyer seeking access to the accused. After telling the lawyer that his client would not be interrogated, the police interrogated the suspect and secured a confession without ever disclosing that his family had hired a lawyer who was trying to see him.

Finally, even when the court recognizes a clear violation of Miranda, it has allowed police to use the evidence. For example, in one of many cases limiting the “exclusionary rule,” the court ruled in a 1971 case that such evidence could be used to “impeach” a defendant if he takes the stand in his own defense.

Ultimately, what saved Miranda from being overturned is probably more its mystique than its meaning. Miranda has become too interwoven in our legal and cultural fabric to simply be dispatched as no longer relevant. The court therefore preserved the body while allowing its spirit to drain away years ago.

There is a legitimate question as to whether Miranda is part of the Constitution, which does not expressly require a duty to inform defendants of their rights. But if it does indeed uphold a constitutional principle, there should be some substance to the protection. Otherwise, yesterday’s reaffirmation of Miranda as constitutional law is little more than a constitutional affectation.

Justice, Politics

Kevin Kelly and the Victimization of a Greiving Family

June 9, 2002 Sunday

HEADLINE: A Tragedy, Not a Crime

BODY:

By all accounts, Kevin Kelly is a loving father who works hard to support his large family in Manassas. The father of 13 children, Kelly was doing sole duty last week when his youngest, a 19-month-old girl, was accidentally left in the family van. She later died.

When most families would be attempting to cope with such a horrific loss, the Kelly family was hit this week with another unimaginable blow. Commonwealth Attorney Paul B. Ebert has announced that he intends to charge Kelly with involuntary manslaughter, a charge that could send him to prison for 15 years. Ebert stated that he wanted to send a message to all parents. Indeed he did. Kelly’s prosecution sends a chilling message of prosecutorial over-reach and abuse. Unfortunately, it is not unique. Increasingly, prosecutors appear to be expressing their outrage over parental negligence through criminal charges, leaving terrible consequences in their wake.

The disaster that struck the family occurred last week when Kelly was watching the children while his wife and one daughter were taking a vacation in Ireland. When the family returned home in their 15-seat van, Kelly enlisted his oldest teenagers to help get all 12 kids into the house. One of the teenagers removed the family’s 3-year-old daughter but forgot the youngest in the van. Kelly assumed that everyone was in the house as he did chores and got pizza for dinner (in another family car). Seven hours later, the child was found dead in the closed van.

This was not the first time that Kelly has lost track of one of his kids. Previously, he left one of his sons at a video store and did not realize that the boy was missing until the store contacted him hours later. But no one has suggested that Kelly knowingly left his daughter in the van, and both parents are described as deeply religious and supportive. This is a case of negligence but not a crime. Criminal cases have long been confined to parents who knowingly put their children at obvious risk, physically abused their children, engaged in drug or criminal activities or showed a history of child neglect.

Ebert does not allege such criminal elements. Nevertheless, Ebert insists that “this case is bigger than Mr. Kelly.” Ebert says that a prosecution of the father is necessary so that “other people will get the message that gross negligence . . . is something that can be prosecuted.” To that end, Ebert stated that he has not decided whether to also criminally charge the teenage daughter as part of his “family learning through prosecution” policy.

Criminal justice is generally based on one of two objectives: retribution or deterrence. Neither objective will be achieved by prosecuting this grieving father. In terms of retribution, no penalty can possibly extract the costs of losing a child due to personal negligence. As for deterrence, Ebert’s belief that prosecution will “send a message” is bizarre. Ebert’s lingering threat is not going to cause parents to be more attentive or less forgetful. You send a message to criminals who act deliberately. Parents are not going to begin to put fail-safe protections into effect because, in addition to losing the most valuable thing in their lives, they risk being served with Ebert’s own brand of punishment.

Ebert is not the first prosecutor to use criminal law to punish parental negligence. In 2000, Paul Wayment was charged criminally after he left his sleeping son in his truck while he hunted. The boy wandered away and was later found dead in the forest. Even the prosecutors admitted that Wayment was not simply a good father but a father totally engrossed in his son. He took his son everywhere and was devastated by the loss. The prosecutors decided to charge but specifically asked the judge not to send the man to jail. However, Utah’s Judge Robert Hilder decided that he had not suffered enough. Hilder told Wayment that he would be sent to jail to consider what he had done. Wayment left the court, went to the spot in the mountains where his son was found and committed suicide. I remain convinced that it was not the prospect of jail but the suggestion that he lacked remorse that proved too much for him. Neither a judge nor a prosecutor was needed to get Wayment to consider what he had done. It would be the defining moment of his life, an agony that only a parent can appreciate. Wayment was certainly guilty of a thoughtless, if not moronic, act in leaving that child in his truck. However, in doing so, he imposed a sentence on himself that was absolute and unappealable.

Our society seems incapable of expressing its most fundamental values without a criminal charge. Prosecution has become a type of exclamation point for social judgments. However, in the Wayment and the Kelly cases, such prosecutions only victimize the grieving to satisfy the vengeful. It is the prosecutorial version of ambulance chasing. Faced with a high-profile death, prosecutors yield to a temptation to express their own views of the parental negligence, as if such a view was in doubt or needed.

Ebert clearly believes that if he hoists a wretch, he can improve child care in Virginia. There is something to this logic that reminds one of the Vietnam War technique of destroying a village to save it. Here, the state will respond to the tragic loss of this child by destroying the family. It will first drain what little funds are available to this large family and then, if successful, it will send the family’s only breadwinner to jail. Ebert insists that “this is bigger than Mr. Kelly.” Not to his family, Mr. Ebert. Before the state victimizes this family in our name, the public needs to send its own message to those who cannot distinguish between true justice and gratuitous punishment.

Constitutional Law, Justice

UnAmerican Arrests: Trap and Arrest in Washington

The Washington Post
October 6, 2002 Sunday

HEADLINE: Un-American Arrests;
Mass detainments of the innocent may be the ultimate form of crowd control, but the tactic is unconstitutional.

BODY:

The urgent calls began late on the first day of the World Bank- International Monetary Fund protests: Students who were either reporters or bystanders had been swept up in mass arrests. The accounts had one common element: All the students were arrested while trying to comply with the law.

The D.C. and National Park Service police had used the same technique in each instance:

Surround the crowd. Tell its members to disperse or face arrest. And then, as people try to disperse, block their escape with rows of officers in riot gear and arrest them.

This happened to a number of student reporters from various universities who were arrested while older reporters were allowed to exit through police lines. One student photographer was clubbed by police while taking pictures. The students then were held in handcuffs on buses for as long as 10 hours before being taken to holding areas for the night, where they slept with one wrist handcuffed to an ankle. Police told them they would be held until Monday if they challenged the arrests but would be released immediately if they pleaded no contest.

Obviously, with thousands of protesters and fluid conditions, police can make mistakes. However, the practice of intentionally encircling large numbers of people for mass arrests, whether or not any law is being broken, was no mistake.

The protests occurred outside the dormitories of some George Washington students, and the university’s law school is located across from the International Monetary Fund and down the street from the World Bank. Many students who were arrested report that they were never told to disperse. The Constitution protects a person’s right to witness public events. While the city may prohibit protests without a permit, it is not allowed to arrest people who are not engaged in such protests. It must give people, including bystanders, an opportunity to leave the area. The error some people made last week was not in their understanding of the law but in their expectation that the D.C. police would comply with it.

The practice of preventing withdrawal seems calculated to maximize arrests in order to remove large numbers of people from the streets. This view is reinforced by the fact that hundreds of people were held until Saturday evening, then released in a perfunctory manner. While they could have been released within hours of their arrest, their continued detainment achieved the purpose of disrupting the protests.

Most officers showed professionalism and restraint during the demonstrations. Moreover, some protesters who sought to interfere with traffic or to protest without a permit were legitimate targets for arrest. But many seemed to have been taken into custody through the trap-and-arrest policy.

It is hardly difficult to make the D.C. streets as orderly as Beijing’s if police can arrest large numbers of people without cause. However, this technique is both distinctly unconstitutional and un-American.

The D.C. Council should investigate whether police:

* Prevented crowds from dispersing by closing off exit points as a prelude to arrest.

* Kept people in shackles for more than 24 hours.

* Used excessive force when people tried to disperse through police lines or in the course of the mass arrests.

* Held hundreds under the pretense of administrative delays in order to deplete the protests.

If the council finds that there was such a policy, police management (including Chief Charles Ramsey) should be held accountable. A trap-and-arrest policy may be the ultimate form of crowd control, but it is neither a constitutional nor a commendable practice. Unless there is an investigation and corrective action is taken, this convenient policy of crowd suppression is likely to become standard operating procedure in our nation’s capital.

Justice

Snow Removal and Democracy

The Washington Post
February 23, 2003 Sunday
HEADLINE: How Democracy Could Clear Our Snowy Streets

BODY:

I’ve been thinking about snow and democracy recently. It’s hard not to when you’re confined at home for five days because of the absence of snow removal. But while last weekend’s storm was of historic proportions, my confinement was nothing new.

As someone who has lived in this area for years, I know that snow removal on side streets ranks about as high as raccoon removal among local governmental priorities. In Alexandria, where I now reside, snow removal is called spring.

The way to end this naturalist approach to winter is simple: Make the positions of street and sanitation director two-year elected posts in jurisdictions throughout the region.

Every time it snows, citizens complain about snow removal and city officials express their surprise about the size of the storm. These officials then explain that crews are working overtime and call for patience from the public. Snow removal is treated like a venture into the unknown. In reality, it is a simple ratio of snow to snow crews: more crews, more snow removal.

Many citizens have resigned themselves to the fact that they probably will have to wait days before their neighborhood sees a plow. Others are outraged by the situation, but their bitter memories melt with the snow.

In Chicago, where I was raised, we threw out Mayor Michael Bilandic in 1979 because the streets were not cleared within 24 hours after a 20-inch snowfall. Since then, Chicago officials have cleared the streets as though their jobs depended on it.

In my Alexandria neighborhood, side streets remained impassable until late Tuesday, three days after the storm hit. The lack of plowing kept many people from their jobs at a huge loss in productivity. Local businesses suffered. By Tuesday morning, some neighbors had tried to force their cars over almost two feet of snow, and the streets were littered with cars looking like so many frozen mastodons.

The blame for this did not lie with citizens, who were driven to desperate self-help measures, but with government officials, who allow the streets to devolve into anarchy every time six inches fall from the heavens. Yet we have no place to direct our anger about substandard snow removal, except toward some unknown apparatchik who runs the local transportation department. Elected positions for streets and sanitation would permit the public to express its satisfaction or dissatisfaction with services. While few of us follow the work of local representatives, almost all of us are intimately familiar with the performance of the street and sanitation directors.

If these positions were subjected to two-year elected terms, citizens would be able to change snow removal policies by changing directors. This would engender competition among candidates to identify problems and propose solutions. It also wouldn’t let mayors and county executives off the hook for feeble snow removal efforts: If elected street or sanitation officials were shortchanged by a county council or a mayor, they would have every incentive to make the true source of the disaster known.

When James Madison and his colleagues were crafting our democratic system, it is doubtful that they saw direct election as a key to snow removal. However, as I sat captive in my home, it seemed clear that more democracy in our government would mean less snow on our streets.

LOAD-DATE: February 23, 2003

Justice

Stun Guns and Torture at the Push of a Button

August 28, 2003 Thursday

HEADLINE: Torture at the Push of a Button

BYLINE: Jonathan Turley

BODY:

Last week accused sniper John Allen Muhammad raised a point of legal procedure and received a shocking response — literally. Muhammad objected to a medical test that had not been ordered by the court or discussed with his attorney. In response to his refusal to cooperate, the guards activated a stun belt that sent a powerful electrical charge through his body.

While few people in this region have sympathy for Muhammad, the use of a 50,000-volt shock was a disturbing introduction to this common device. In fact, the use of the stun belt in such a circumstance is unlawful but not unique. Stun belts have been denounced internationally as a violation of basic human rights. Local government and Congress should insist on new guidelines, if not a ban, on the use of these devices.

At $ 800 each, stun belts are the closest thing to a fashion craze in the correctional field. For the well-appointed prosecutor or prison guard, they’re a must. The devices are battery-operated and fit around the waist of a prisoner. The guard holds a simple remote control that sends an eight-second, 50,000- to 70,000-volt surge through a prisoner, causing immediate loss of muscular control and incapacitation. When shocked, many individuals will defecate or urinate on themselves. Some can experience fatal cardiac arrhythmia. Muscular weakness and temporary paralysis or weakness continue for 30 to 45 minutes. Last spring Wisconsin sheriffs held a public display to show the media how harmless tasers (stun guns) and stun belts are by shocking one of their own deputies, appropriately named Krist Boldt. Boldt was hit with a five-second jolt and was sent to the hospital with a head wound after he hit the floor.

The increasing use of stun belts in the United States has alarmed some of our closest friends internationally. Stun belts have been defined as a torture device by Amnesty International, which describes them as “cruel, inhumane and degrading.” The United Nations Committee Against Torture has objected that they may violate the Geneva Conventions.

Despite such human rights objections, stun belts are used in 30 state prisons and all federal trial courts. For prisoners, they have the same effect as a taser gun pointed continually an inch from their heads. At any moment, a guard can flip a switch and turn you into a quivering, incapacitated freak. Indeed, the stun belt’s ability “to humiliate the wearer” is cited as a “great advantage” by one company’s literature — impressing on a defendant that “the mere push of a button in someone else’s hand could make you defecate and urinate yourself.”

A court recently found that accidental triggerings occur regularly. For example, murder defendant Roy Hollaway of Las Vegas was at a critical stage of his trial, with a prosecutor pointing to him and asking the jury “how deep, deep into this man’s being does this violence run?” As if on cue, Hollaway’s stun belt was triggered and 50,000 volts coursed through him. As the jury watched, Hollaway flailed and foamed on the courtroom floor.

It is because of the constant threat of an intentional or accidental shock that some courts have banned or restricted the use of stun belts in court. Last year the California Supreme Court effectively banned the use of hidden belts during criminal trials, rejecting claims that conventional restraints and proper supervision cannot satisfy security concerns. Other states, such as Indiana, have also banned them.

The use of a stun belt on Muhammad appears abusive and should be investigated as a potential case of criminal assault. In the United States, a prisoner cannot be physically attacked for a refusal to submit to a medical test. In this case, Muhammad reportedly refused to submit to an X-ray without speaking with his counsel. Muhammad had agreed to a court-ordered MRI, but objected that the X-ray was never raised. According to The Post, Muhammad was restrained by the wrists and ankles and never became violent. The stun belt was apparently used to punish him and force him to conform to the wishes of the guards. With stun belt literature promising guards “total psychological supremacy” over inmates, an inmate’s failure to yield can enrage a guard and easily lead to such “corrective action.”

There is no difference between this alleged use of a stun belt and an officer beating Muhammad with a club or shooting him for failing to yield to commands. Yet such abuses are rarely treated as criminal matters. In June 1998, Long Beach Superior Court Judge Joan Comparet-Cassani ordered a deputy to shock a defendant, Ronnie Hawkins, after he repeatedly interrupted her. A judicial review board refused to impose disciplinary action on the judge, who continues to try cases in California.

Various ways exist to control or punish an uncooperative prisoner short of some Pavlovian use of electric shocks. In Muhammad’s case, he could have been punished administratively for the failure to obey an order, assuming that he was wrong.

Stun belts should be prohibited from use in court and in all but the most extreme correctional circumstances. At a minimum, this case calls for new restrictions and training and a commitment to prosecute guards who use excessive force.

The writer is Shapiro professor of public interest law and directs a prison project at George Washington Law School. He will answer questions about this column during a Live Online discussion at 2 p.m. today at ww