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Deep in the heart of America is a visceral animus against injustice, especially when it is suffered by the powerless at the hands of the powerful. We hate unfairness to children, old people, and dogs. We abhor the heavy hand of authority inequitably wielded. Yet, despite our organic passion for mercy and fair play, we find ourselves riding into twenty-first century law enforcement on the dark horse of retribution.
This article looks at why the traditional "rights/remedy" paradigm has failed and proposes a fundamentally different approach. Employing the Privileges or Immunities Clause of the Fourteenth Amendment, this new approach would generate proactive rather than reactive solutions to the problem of maintaining constitutional protections for human rights. In particular, we will see how the right to travel, now firmly established as a privilege of national citizenship, could be used to address the problem of racial profiling.
When black prisoners from selected states were compared with the general black population nationally, a study found that the black population comprised 11.9 percent of the total U.S. population while black prisoners comprised 45.3 percent of the penal population.
Sentencing a defendant is—or should be—one of the most important moments in the criminal justice system. After all, it is when state power confronts an individual. With my words of authorization, a citizen’s liberty is extinguished, often for extraordinary periods of time.
Behind the revolutionary increase in the severity of criminal punishment in our society during the last few decades lies a simple but neglected pattern: abstract categories of crime and criminals are conceived of in the most serious and extreme possible terms.
Judging simply by the numbers, one might expect that the subject of incarceration in the United States would be too big to be ignored. Some two million adults are behind bars, and over $40 billion a year is budgeted toward keeping them there. But despite the enormous human and financial costs, there is little public debate over the country’s imprisonment policies, certainly much less than that accorded education, health care, and other serious issues of the day.
As U.S. Attorney, I am considered the chief federal law enforcement officer in western Washington, with responsibility for counterterrorism, drugs, cybercrime, and a myriad of criminal prosecutive and civil representation duties on behalf of the United States. In this article, I do not purport to speak for the Department of Justice (DOJ); rather, as a personal perspective, I seek to describe one lawyer’s journey in the law.
The 1990s were dominated by get-tough-on-crime measures, dramatically increasing the nation’s prison population and the length of prison sentences. Those measures culminated with the enactment of "three strikes" legislation around the nation. Beginning with Washington State in 1993, by the end of the decade, the federal government and over half of all states had enacted some form of a "three strikes" law.
We like war talk in this country. No matter how complex or intractable the problem, the answer is to wage war. Before the current War on Terrorism, there was the War on Drugs, the War on Hunger, and the War on Poverty. And for the past thirty years we have been engaged in a desultory yet aggressive War on Crime.
If there were a dictionary definition for "soft on crime," it probably would read: judge, one who protects the constitutional rights of persons accused of crimes; grants motions to suppress evidence or confessions; grants motions for new trials and writs of habeas corpus after conviction. The corollary definition for "tough on crime" would probably be: judge, one who denies all such relief.
Standing at five-foot, three inches, Judge Nancy Gertner, of the U.S. District Court of Massachusetts, may or may not be physically able to carry someone from a burning building, but in her twenty-three-year career as a criminal defense and civil rights lawyer, and—since 1994—in her capacity as a federal judge, Judge Gertner has rescued an untold number of people from the imminent danger of unjust imprisonment. In doing so, she has become a human rights hero.