Author Archives: Sheila

Private Prisons And The 13th Amendment

If I was compiling a list of policies the next administration needs to change, it would be  truly enormous, and fairness compels me to acknowledge that not all of the entries can be attributed to Trump. Previous administrations got swept up into privatization ideology, and some of the consequences weren’t pretty.

Privatization as practiced in the U.S. wasn’t ever true privatization. In England, for example, Thatcher sold off railroads and steel mills that were then operated as private businesses–they paid taxes, and if they failed, they failed. In the U.S., what we call “privatization” is really “contracting out”–government agencies entering into contracts with private companies or not-for-profit organizations to assume primary responsibility for delivering a government service or performing a government function. Sometimes, that made sense.  Often, however, it has simply been a new form of patronage.

Obviously, there’s a big difference between contracting with a private company for trash removal and authorizing a for-profit company to operate prisons.

Researchers have pointed to the often-horrific consequences of privatizing prisons, so I was interested in a lawsuit that is evidently working its way through the system in Arizona.

The complaint enumerates the issues involved in Arizona’s privatized prisons, pointing out the perverse incentives that govern performance under such contracts. Nothing really new there–the research has long illuminated the extent to which the profit motive is incompatible with proper functioning of penal institutions.

What was new (at least to me) and intriguing was the plaintiff’s assertion of a 13th Amendment claim. The 13th Amendment abolished slavery and involuntary servitude. Here are pertinent portions of the argument from the Complaint.

The amendment prohibits “all forms of involuntary slavery of whatever class or name.” Slaughter-House Cases, 83 U.S. 36, 37 (1872). That means it “denounces a status or condition, irrespective of the manner or authority by which it is created.” Clyatt v. United States, 197 U.S. 207, 216 (1905). The amendment is “a promise of freedom” which includes “freedom to go and come at pleasure and to buy and sell when [one] please[s].” Jones, 392 U.S. at 443 (internal quotation marks omitted). It is certainly not limited to those with African ancestry. “It was a charter of universal civil freedom for all persons, of whatever race, color, or estate, under the flag.” Bailey, 219 U.S. at 240-41.

“The most basic feature of ‘slavery’ or ‘involuntary servitude’” is “the subjugation of one person to another by coercive means.” United States v. Nelson, 277 F.3d 164, 179 (2d Cir. 2002). Professor Akhil Amar uses this definition of “slavery”: “A power relation of domination, degradation, and subservience, in which human beings are treated as chattel, not persons.” Akhil Reed Amar, Child Abuse As Slavery: A Thirteenth Amendment Response to Deshaney, 105 Harv. L. Rev. 1359, 1365 (1992)…

Plaintiffs are being held in cages for the financial benefit of private entities which make billions of dollars in revenue from this captivity.The private prisons receive the “fruits of prisoners’ economic value and labor.” In short: the prisoners have been effectively transformed into property, valued only in terms of their “compensated man-days.” The allegations in the Complaint plausibly state that their status falls within the Thirteenth Amendment’s scope. If holding people in captivity in this way were happening to anyone but prisoners, everyone would call it what it is: slavery. It is at minimum “involuntary servitude.”

This argument gains persuasive power from the national history Americans are only beginning to admit. Books like These Truths by Jill LePore and The New Jim Crow by Michelle Alexander testify to racists’ unremitting efforts to keep African-Americans in servitude. Criminal Justice research supports their recitation of that history, the disproportionate imprisonment of Blacks and poor people, and more recently, the unconscionable behaviors of private prison companies.

Criminals should be jailed. Government clearly has the right  and duty to protect its citizens and to pursue public safety by incarcerating or otherwise sidelining dangerous people. That said, there are few governmental tasks less suited to “privatization” and the pursuit of profit.

Put this reform on our very extensive list.

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Daring To Hope…

A week from tomorrow is Election Day–finally! If nothing else, it will mark the merciful end of the interminable and overwhelmingly awful commercials for local candidates. My abiding hope is for an enormous turnout and an overwhelming BLUE result.

There are some anecdotal indications that such a result is possible. Turnout for early voting has been more than robust–over a week ago, the number of early voters had already exceeded the total early vote in 2016, and it’s hard to imagine that turnout reflects enthusiastic support for Trump.

A FaceBook friend recently posted about standing in the long line for early voting in his small, reliably red Indiana town. A car drove past the line, and the driver shouted “How long have you been waiting?” Someone from the line shouted back “Four years!” and the whole line applauded.

Tim Alberta is a writer/reporter for Politico; as we’ve gotten closer to election day, he has been writing about his “hunches,” which he bases on literally thousands of interactions with voters around the country.

A couple of weeks ago, I decided it was time to start unpacking my notebookto share the most significant and unavoidable trends I’ve spotted over the past year. Inching out on a limb, I wrote about four gut feelings I had with just four weeks remaining until Election Day: Trump fatigue peaking at the wrong time; the only “silent majority” I’ve encountered on the ground; the dangers posed by mass absentee voting to the Democratic Party; and the historic deficit Trump could suffer among women voters.

With three weeks to go until Election Day, I inched out a bit farther, describing the changing landscape (literally) of yard-sign politics, the early indicators of explosive, unprecedented turnout and the fork in the road Republicans could face as soon as November 3.

In last week’s column, with just two weeks to go, he shared two more “strongly held” hunches: that the suburban realignment that has been widely reported is not–as most reporting has suggested–just a female phenomenon; and that we are “overthinking” this campaign. 

With respect to suburbia, Alberta writes

Twice in the past week, I’ve been given reliable polling from the ground in battleground states that suggests something that was once unthinkable: Trump is losing college-educated white men for the first time in his presidency. The margins aren’t huge, but they are consistent with a trend line that dates to 2018, when Republicans carried this demographic by just 4 points. What the numbers suggest—in both private and public polling—is that Biden is no longer just walloping Trump among white women in the suburbs, he’s pulling ahead with white men there, as well.

We shouldn’t get carried away with this just yet. Republicanism is deep in the DNA of many of these voters, and it wouldn’t be surprising to see a last-minute lurch back in the direction of their political home.

Still, the fact that Trump is sweating college-educated white men two weeks out from Election Day tells you everything you need to know about the state of the race at this moment.

With respect to our “overthinking,” he says

More than 219,000 Americans are dead from a global pandemic. Millions of adults are home from work and millions of kids are home from school. The streets of big cities and small towns have been convulsing with anger and protest and even sporadic violence.

All of this is politically significant. All of it has contributed to an election-year environment that is fundamentally detrimental to the incumbent. But if Trump loses, the biggest factor won’t be Covid-19 or the economic meltdown or the social unrest. It will be his unlikability.

There’s an old political adage that people ultimately vote for the person with whom they’d like to have a beer. To belabor the obvious, that isn’t Donald Trump.

All across America, in conversations with voters about their choices this November, I’ve been hearing the same thing over and over again: “I don’t like Trump.” (Sometimes there’s a slight variation: “I’m so tired of this guy,” “I can’t handle another four years of this,” etc.) The remarkable thing? Many of these conversations never even turn to Biden; in Phoenix, several people who had just voted for the Democratic nominee did not so much as mention his name in explaining their preference for president.

Trump’s overwhelming need for constant attention hurts him. As Alberta points out, Trump  has made himself more accessible than any president in history. He has used the White House and Twitter as performance arenas, and “like the drunk at the bar, he won’t shut up.”

Many of his own supporters are tired of having beers with Trump.  

In any other year, the numerous anecdotes and the polling would reassure me–but the memory of 2016, together with Republicans’ overwhelming assault on vote integrity–are keeping me on the edge of my seat.

Fingers (and toes) crossed….

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Let’s Talk About Originalism

Today, the Senate is scheduled to elevate Amy Coney Barrett–a rigid ideologue who has never tried a case– to the Supreme Court. During the fiasco that has substituted for her vetting, we’ve heard a lot about “originalism.”

A while back, a reader of this blog reminded me of Thomas Jefferson’s opinion on originalism, contained in a letter he wrote to Samuel Kercheval on July 12, 1816.  Jefferson wrote

“I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as a civilized society to remain ever under the regimen of their barbarous ancestors.”

The philosophy of “originalism” was popularized by Antonin Scalia, who tended to employ his version of it when he disapproved of those “changes in manners and opinions” and ignore it in the many cases where it was clearly unworkable.

As I have previously explained, there is a version of originalism that does work, that does keep the constitution from being simply what nine people in black robes say it is.

In that version of originalism, courts are required to protect the values and principles that the founders were clearly trying to protect. James Madison could never have anticipated new methods of communication–radio, movies, television, the internet–but he had very clear ideas about protecting expression against government censorship. He, Jefferson and several other Founders also clearly expressed their beliefs in the importance of separating government from religion. Courts today must honor the Founders’ devotion to those and other principles embedded in and protected by the Bill of Rights.

Fidelity to those principles is the only workable and intellectually honest form of originalism, and as Edwin Chereminsky recently pointed out in an editorial for the New York Times, it is definitely not the originalism of Amy Coney Barrett.

Chereminsky is a prominent legal scholar, and Dean of Berkeley’s law school, and he points to the numerous problems with Barrett’s purported “public” originalism–the notion that the constitution must be interpreted to mean what the public thought it meant when it was ratified.

In fact, under the original public meaning of the Constitution, it would be unconstitutional to elect a woman as president or vice president until the Constitution is amended. Article II refers to them with the pronoun “he,” and there is no doubt that original understanding was that only men could hold these offices.

Throughout American history, the Supreme Court has rejected originalism and protected countless rights that cannot possibly be justified under that theory. For example, the court has interpreted the word “liberty” in the Constitution to protect the right to marry, to procreate, to custody of one’s children, to keep the family together, to control the upbringing of one’s children, to purchase and use contraceptives, to obtain an abortion, to engage in private adult consensual same-sex sexual activity, and to refuse medical treatment.

The Dean points out that rejection of Barrett’s understanding of originalism is anything but new. He quotes the 19th century Chief Justice, John Marshall, who wrote that “we must never forget that it is a Constitution we are expounding,” a Constitution “meant to be adapted and endure for ages to come.” Furthermore,

It is a myth to say that an “original public understanding” can be identified for most constitutional provisions because so many people were involved in drafting and ratifying them. In teaching constitutional law, I point to the many instances where James Madison and Alexander Hamilton disagreed about such fundamental questions as whether the president possesses any inherent powers.

Chereminsky makes a point I also make to my classes: how can “original public meaning” guide today’s courts in deciding whether the police can take DNA from a suspect to see if it matches evidence in unsolved crimes, or obtain stored cellular phone location information without a warrant?

The “public originalism” invented by Scalia and embraced by Barrett is an ahistorical cover intended to obscure and justify the judicial activism they profess to deplore–an intentionally dishonest construct allowing judges to favor the privileged and protect the status quo.

Placing Barrett on the Supreme Court dishonors both the Court and the Senators who vote to confirm her.

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The Echoes Of History

I just finished reading The Ku Klux Klan in the Heartland, James H. Madison’s deeply researched and very readable account of Indiana’s history with the KKK. To say it was sobering would be a considerable understatement.

Madison, an Emeritus Professor of History at Indiana University, is often referred to as the “Dean” of Indiana historians, and this recent book, published by IU Press, is a good example of his meticulous approach and his ability to place historical events in a larger context. He cautions us that the malcontents who currently affiliate with the Klan and other white nationalist organizations are very different from those in the broad-based movement that included thousands of “good Indiana citizens” in the 1920s–a movement that effectively took over the state’s political establishment for a time.

Times change, but sometimes less than we might hope. After reading the diatribe Becky shared in yesterday’s comments, I was especially struck by its echoes in Madison’s description of the Klan’s 1920s appeal:

In churches, town halls, and public parks, Hoosiers heard the warnings. People not like us were tearing down our religion and our country. Enemies were rising up. The Klan could identify them. The Klan could show 100 percent Americans who they should fear and how they should fight.

I don’t want to overstate the case. We really have come a long way from the hysteria of the 1920s, and the susceptibility of enormous numbers of Americans to fear and hatred of “others.” But as Trump devotees remind us, an uncomfortable percentage of Americans still respond to messages of division, threats of  displacement, and hostility to people they perceive as different from themselves.

I grew up in Indiana, but Madison’s book expanded considerably on what I’d known about Klan dominance in the state. I’d heard about the passage of a state law authorizing sterilization of people deemed “defective,” but I was totally unaware that our first state constitution denied African-Americans the right to vote, or that its replacement in 1851 (affirmed by a large vote) “excluded African-Americans from taking up residence in the state.”

I knew that the Klan had been active in Indiana politics, but I was surprised to read an excerpt from a New York Times article reporting that the “Indiana Klan had a machine that made [New York’s] Tammany seem amateurish,” and depressed by assertions that “85% of the [Republican] party were Klan members.”

I was also largely unaware of the degree of anti-Catholic fervor the Klan tapped into–although I do recall a couple of people telling me in 1960 that Catholics were stockpiling firearms in church basements, and that if John F. Kennedy won the election, the Catholics would mount a take-over. (I thought those people were nuts. It didn’t occur to me that such a myth was widespread, but evidently it was.)

It was impossible to read this history without discomfort, or without hearing its echoes in today’s fringe precincts. Madison pointed out, for example, that the  Klan constantly whined, consistently characterizing white Protestants as “victims” and seeing any and all social change as a descent into immorality, crime and godlessness. I had been unaware of the Klan’s considerable role in pushing for Prohibition, its suspicion of public libraries (!), and its savvy use of that new communication device called radio. “This new technology helped create the imagined community of like-minded Americans separated by distance.”

And I’d known nothing about the Klan’s “aggressive” education agenda–bills to require (Protestant) Bible reading in the public schools, to allow the state to approve all textbooks in both public and parochial schools, and ensure that curricula advanced “patriotism and Americanism.” (Where have we heard that lately?)

I recommend the book.

As Santayana warned, those who don’t know their own history are doomed to repeat it.

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Our Allies No Longer Trust Or Respect Us, And Our Enemies No Longer Fear Us…

Today, I am ceding my digital space to the 780 retired Generals, Admirals, Senior Noncommissioned Officers, Ambassadors and Senior Civilian National Security Officials who recently signed this letter supporting Joe Biden for President. Feel free to share it.

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To Our Fellow Citizens:

We are former public servants who have devoted our careers, and in many cases risked our lives, for the United States. We are generals, admirals, senior noncommissioned officers, ambassadors, and senior civilian national security leaders. We are Republicans, Democrats, and Independents. We love our country. Unfortunately, we also fear for it. The COVID-19 pandemic has proven America needs principled, wise, and responsible leadership. America needs a President who understands, as President Harry S. Truman said, that “the buck stops here.”

We the undersigned endorse Joe Biden to be the next President of the United States. He is the leader our nation needs.

​We believe that Joe Biden is, above all, a good man with a strong sense of right and wrong. He is guided by the principles that have long made America great: democracy is a hard-won right we must defend and support at home and abroad; America’s power and influence stem as much from her moral authority as it does from her economic and military power; America’s free press is invaluable, not an enemy of the people; those who sacrifice or give their lives in service of our nation deserve our respect and eternal gratitude; and America’s citizens benefit most when the United States engages with the world. Joe Biden will always put the nation’s needs before his own.

​Those who have served know empathy is a vital leadership quality – you cannot do what is best for those you lead if you do not know their challenges. Joe Biden has empathy born of his humble roots, family tragedies and personal loss. When Americans are struggling, Joe Biden understands their pain and takes it upon himself to help.

​We believe America’s president must be honest, and we find Joe Biden’s honesty and integrity indisputable. He believes a nation’s word is her bond. He believes we must stand by the allies who have stood by us. He remembers how America’s NATO allies rushed to her side after 9/11; how the Kurds fought by our side to defeat ISIS; and how Japan and South Korea have been steadfast partners in countering North Korean and Chinese provocations. Joe Biden would never sell out our allies to placate despots or because he dislikes an allied leader.

​While some of us may have different opinions on particular policy matters, we trust Joe Biden’s positions are rooted in sound judgment, thorough understanding, and fundamental values.

​We know Joe Biden has the experience and wisdom necessary to navigate America through a painful time. He has grappled with America’s most difficult foreign policy challenges for decades, learning what works – and what does not – in a dangerous world. He is knowledgeable, but he also knows that listening to diverse and dissenting views is essential, particularly when making tough decisions concerning our national security. Many of us have briefed Joe Biden on matters of national security, and we know he demands a thorough understanding of any issue before making a decision – as any American president should.

​Finally, Joe Biden believes in personal responsibility. Over his long career, he has learned hard lessons and grown as a leader who can take positive action to unite and heal our country. It is unthinkable that he would ever utter the phrase “I don’t take responsibility at all.”

​The next president will inherit a nation – and a world – in turmoil. The current President has demonstrated he is not equal to the enormous responsibilities of his office; he cannot rise to meet challenges large or small. Thanks to his disdainful attitude and his failures, our allies no longer trust or respect us, and our enemies no longer fear us. Climate change continues unabated, as does North Korea’s nuclear program. The president has ceded influence to a Russian adversary who puts bounties on the heads of American military personnel, and his trade war against China has only harmed America’s farmers and manufacturers. The next president will have to address those challenges while struggling with an economy in a deep recession and a pandemic that has already claimed more than 200,000 of our fellow citizens. America, with 4% of the world’s population suffers with 25% of the world’s COVID-19 cases. Only FDR and Abraham Lincoln came into office facing more monumental crises than the next president.

​Joe Biden has the character, principles, wisdom, and leadership necessary to address a world on fire. That is why Joe Biden must be the next President of the United States; why we vigorously support his election; and why we urge our fellow citizens to do the same.

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​This letter was signed by 780 National Security leaders of both parties, people who served in both Republican and Democratic administrations. You can see the list of signatories here.

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