an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The New York Times has an excellent editorial today complaining about President Obama's extraordinarily sparing use of his constitutional power to grant pardons or, just as importantly, commutations of overly-long sentences. As he prepares to address the country on the 50th anniversary of Martin Luther King's (and John Lewis's....) speeches at the March on Washington, Obama could do much worse than offer some reflections on the costs to a society of adopting often vindictive retribution over a belief in the possibilities of redemption with regard to those convicted of crime.
Again, I suggest he take a leaf from Warren G. Harding and suggest that perhaps it's time to commute (not pardon) the 20-year sentence of John Walker Lindh, who was railroaded into a guilty plea by the altogether credible threat that the Bush Administration would seek the death penalty. The DOJ fired a whistleblower who noted the lack of basic rights accorded Lindh after he was in the hands of American authorities. He doesn't have to invite Lindh for a chat at the White House as Harding did with Debs. And, if he doesn't want to pay the political cost of exhibiting some mercy toward Lindh, then, s suggested in my earlier postings, there are surely thousands of people imprisoned for drug offenses who would be better off were they back with the families. Not to mention that it would save the US a whole lot of money. And, while he's at it, President Obama could override the Bureau of Prison's vindictive refusal to allow Lynne Stewart, who apparently is dying of cancer, to spend her last days or months outside of prison.
I truly believe that this seeming indifference toward people he could in fact help with the stoke of a pen is the single most unattractive aspect of the President's persona.
[UPDATE: As the result of a conversation with Akhil Reed Amar, I should make it absolutely clear that I do not genuinely analogize Debs and Lindh. Debs was a thoroughly admirable figure in our history, and even if one disagrees with his opposition to World War I (a subject about which I have indicated my deep ambivalence in other postings), it is still outrageous that he was sent to prison for 10 years for exercising the freedom of speech that should have been guaranteed (and certainly would be protected today) by the First Amendment. There is nothing admirable about the conduct for which Lindh is being imprisoned. That being said, there is a remarkable article on Lindh that appeared in Esquire magazine in 2006 and suggests that he may in fact be a more complex person than "The American Taliban" that quickly became his label. The reason to pardon Debs, for which Harding deserves honor, was to rectify a constitutional injustice. He never should have been in prison in the first place, and he remained in prison because of Woodrow Wilson's vindictiveness. Lindh raises quite different questions about the meaning and occasions for the display of mercy, though I will continue to point out that there are certainly injustices that surround his interrogation and the pressure brought to bear on him to plead guilty as a way of avoiding a quite possible death penalty. All of this being said, I certainly do not expect Obama, or probably any president, to display any mercy toward Lindh, who will, after all, gain his liberty in approximately eight years and therefore make the issue moot. Lynne Stewart is a different case. What exactly is the national interest in making her die a miserable death in a federal prison?. Will that serve as a deterrent to future miscreants?
And then there a host of unknown schnooks. Consider Edward Young, the subject of a powerful column by Nicholas Kristof in the NY TImes. He was sentenced (mandatorily) to fifteen years in a federal prison for possessing seven shotgun shells he had gotten when helping a neighbor clear out her home after the death of her husband, a hunter. Needless to say, possession of the shells violates the "felon-in-possession" statute. A federal prosecutor insisted on bringing the prosecution, taking no note at all of the fact that Young has seemingly mended his ways since leaving prison in 1996. . So let Obama's first display of genuine mercy be in that case, which would presumably appeal to a very different constituency than anyone who actually cares about Stewart or, even more so, Lindh. The real point is that he demonstrate that there is something other than icewater that courses through his veins when presented with examples of the injustice that is part of the American system, as his own attorney general, presumably with White House clearance, pointed out. Let him spark a "national conversation" by asking if Edward Young is really a menace to the country or, for that matter, whether Martha Stewart should be denied the right to possess a firearm with which she might defend herself against someone who invades her home--declared by the Supreme Court a "fundamental right" in Heller and thus protected by the Second Amendment--because she had the very bad judgment to lie to an FBI agent investigating a case of insider trading. . Posted
by Sandy Levinson [link]
Why precisely should Obama pardon Lindh, who was an American al Qaeda and very arguably a traitor?
Democrats and liberals took many shots in the past for being 'soft on crime,' and in recent history they often feel the need to overcompensate in trying to show this is not true, so a liberal Democratic President who hesitates to use the pardon power is not surprising to me. Add to the mix that crime is often viewed through racial lens in the US and again it is unsurprising that the nation's first and only black Executive has not been active in this area.
Do not get me wrong, this does not justify Obama not doing what is right or his duty, and he certainly deserves no profile in courage in this area.
Obviously, the President cannot commute the sentence given to John Walker Lindh; Bart De Palma has declared him a traitor. Disregard any concerns you might have about the legal process he was accorded after capture and the gag order to which he is currently subject, Bart De Palma says the dirty Mooslem had it coming.
The idea that the guilty should be granted pardon for their crimes as compensation for wrongs done to them - a sort of reverse eye for an eye - is downright medieval.
The idea does not even work as a matter of equity. Lindh committed his crimes against the people, not the government. If members of the government committed crimes against Lindh, then you punish them both.
Debs now would probably be protected by the 1A. John Walker Lindh might very well have been pressured into a guilty plea. But, it's a bit harder to determine he was totally innocent. Still, I wouldn't be against pardoning the guy. Would probably wait until after the '16 elections though.
The Stewart override or more pardons or commutations for drug offenses would be a better use of his time. Me personally, I wouldn't be against him commuting Manning's sentence on the way out of office either.
The exclusionary rule was targeted to bar admission of specific evidence which was gathered illegally and does not pardon anyone from the crimes they committed.
Lindh joined the AQ al Ansar group while AQ was openly at war with the United States. (BTW, this is the same group which was operating in Iraq with Saddam's knowledge and later morphed into al Qeada in Iraq). This is the worst form of treason. If the government could meet the two witness rule and had the sand to bring a treason charge, Lindh could and should have been sentenced to death.
As it was, the government went wobbly because of fears a judge could exclude not only the evidence gained through coercion (which would be properly excluded in a criminal trial), but also all the other evidence they gained from that intelligence. So they offered Lindh a sweetheart deal which he accepted.
This traitor will be out of prison in a few years. Lindh damn well should not have that short sentence commuted to add insult to injustice.
I am not sure that it is "needless to say" that Young was committing a crime when he came into possession of a few shotgun shells (without the shotgun) while helping out a neighbor. Actually it is needful to say (if thats an expression) that pretty much anyone could be charged with a crime if the US attorney is going to apply every federal criminal law in a literal fashion without regard to common sense or decency.
So Obama should pardon Young and fire the US attorney, regardless of what "constituency" that may appeal to.
As far as I am concerned, none of the others you mention are anywhere near the front of the line in terms of deserving pardon.
One doesn't have to believe that Lynne Stewart deserves a pardon in order to believe that there is no real interest in keeping her confined while she is dying. George W. Bush, to his credit, did not "pardon" Scooter Libby, but, rightly or not, he did commute his sentence so that he didn't have to go to jail. Similarly, Obama could commute Stewart's sentence to "time served" and let her go home.
I apologize for the off topic post, but I just wanted to point out to you Professor Levinson, and hopefully you can pass this on to your fellow bloggers, that there are numerous options for moderating comment threads on the blogger platform. One such tool is the ability to ban persistent trolls and those that bait them.
If it's free speech norms that prevents their use, I'd say I much prefer moderated comments to no comments at all, which is now the mostly what there is on this blog.
I meant that is could work as a prophylactic in a similar way. If convictions that involved malfeasance by authorities were routinely, or even somewhat regularly in a symbolic way, commuted it might deter such malfeasance later.
As to the general matter of banning, I am against banning anyone who posts regularly here, even though I may not like their approach and/or comments. In a diverse democracy what good does more and more shutting out of comments you do not like do? It is too easy to simply scroll down past ones you do not like.
Can a pure (or even impure) libertarian believe in banning someone from blog commenting where comments are not prohibited?
As to moderation, it need not actually be moderate but more likely subjective in practice. I respect a blog site decision (or one of its poster's) not to permit comments. But censorship is another matter when comments are invited. This is not comparable to falsely yelling fire in a crowded theatre.
Of course, there is the issue of the NSA which some may consider as a not so subtle form of inducing moderation on an involuntary basis. By the way, NSA, I'm a post-Korean pre-Vietnam veteran.
I only have two rules at my blog - keep it civil and keep it on topic. Opposing points of view are what make blogging fun.
BB posted dozens of foul and obscene comments and continued to do so through multiple computers until I ended up blocking them all. Wordpress has a very nice filter that spots most foul comments before they are posted.
There is perhaps a thin line between libertarianism and anarchism. Here's a segment of our SALADISTA's comment (10:37 AM) at Sandy's 8/15/13 post "Sleepwalking":
Neither elections nor judicial review have remedied this problem.
Would it then be proper for the Tea Party minority to riot in Washington and demand the military (who are also not big fans of this president) impose a coup dissolving the current government, place Democrat politicos under arrest, essentially outlaw the Democratic Party, appoint Speaker Boehner as interim President, and then start shooting down Democrat demonstrators in the streets?
What is good for Egyptians should be good for Americans, after all.
Did our SALADISTA cross the line or is he on thin ice under global warming conditions? Obviously there are many shades of libertarianism. Our SALADISTA now seems to be a "warrior" libertarian.