Friday, December 12, 2014

Power of the prosecutor: Ferguson, Staten Island, Immigration

Recent events have taught many of us a key fact about the criminal justice system that we may not have understood.

The most important element of the system is not the police, the judge or the jury.  It is the prosecutor.

The prosecutor decides on sending cases to trial, the crime charged, the potential punishment, if there is enough evidence to convict, and the priority of the alleged crime in light of available resources, including prison space.

The decision to proceed may lead to a preliminary hearing before a judge to ensure that the prosecutor is not abusing the broad right to proceed to trial.  Or the prosecutor may may choose not to proceed, allowing the person arrested to go free.

A prosecutor may have to refer a possible crime to a grand jury, which can decide if there is “probable cause” sufficient to go to a full trial.

In a grand jury, the prosecutor and witnesses are heard and subject to questioning by the jurors.   
Defense lawyers do not get to cross-examine, and the defendant may not testify.

It is generally accepted that, if a prosecutor wants a grand jury to indict an accused person, it happens.  A judge once famously said that a prosecutor could get a grand jury “to indict a ham sandwich.”

We have recently had three cases of the exercise of this “prosecutorial discretion.”  They have all raised considerable controversy and extreme reactions.

In both Ferguson, Missouri, and Staten Island, New York, a police officer killed a person.  The police officer was white and the slain person was black.

In both cases, a grand jury considered a possible charge.  The prosecutors may have liked using a grand jury so that, avoiding their possible bias in favor of the police, there would be an independent judgment of the incidents.

Neither grand jury indicted the police officers involved.  Critics might conclude that, on their own, the prosecutors would have declined to proceed.  If they were not aggressive in front of the grand jury, they may have achieved the same result, but without taking responsibility for it.  If so, prosecutorial discretion extended right into the jury room. 

In the Missouri case, there was no objective way for others to know for sure what had happened.   
Witness accounts differed, but there would be no trial.  The family of the person killed by the police called for wider use of police body cameras, which should make the facts obvious.

But, in the Staten Island case, there was visual evidence available to both the grand jury and the public.  The slain person had not threatened the police, but had been cornered by several officers for the alleged crime of selling loose, untaxed cigarettes.  Despite his protest, he was thrown to the ground and choked to death.

We do not know what the grand jurors thought, but it is probably safe to assume that the prosecutor did not press hard for an indictment.  In fact, he had granted immunity to all officers involved but one, possibly letting off a person easier to indict than the accused officer.

It is not difficult to conclude that the prosecutor led the grand jury to let the police get away with an unjustified killing.  That may be extreme use of prosecutorial discretion.

When we elect a district attorney, we give the prosecutor that kind of power.  Perhaps, in cases involving the police, appointing an independent prosecutor from distant jurisdiction would make sense.

The final case came with the President Obama’s decision to allow millions of illegal entrants to stay in the United States, avoiding deportation.  While they gain no rights or benefits, they avoid the threat of their lives being disrupted, at least as long as Obama is president.

Obviously, Obama acted because he thought something like his action would be part of immigration reform legislation.  Though such legislation has little chance of getting out of a GOP-controlled Congress, he was trying to goad it into action.

Federal law enforcement agencies are under the president’s control.  Congress has limited the funds available to him for border enforcement.  Lack of resources to pursue all law-breakers is a factor allowing prosecutorial discretion to be used in setting priorities.

What is unusual about Obama’s action is that it applies to so many people.  Usually, we think of prosecutorial discretion applying in individual cases, not to groups of people breaking the law.

All of these cases suggest yet another factor for prosecutorial discretion – politics, whether its the president pushing Congress or a prosecutor protecting the police.

Friday, December 5, 2014

Obama’s greatest move also his biggest failure

President Obama’s greatest achievement and perhaps his greatest failure is the same piece of legislation – Obamacare or, more officially, the Affordable Care Act.

The intent of the ACA was ambitious: to provide health care insurance for most of the 40 million Americans who had no coverage at all.  Without health insurance, these people were likely to be forced to accept inferior medical care.

This law has become they symbol of the failure of the Obama administration and the cause of low ratings of Obama himself.

How did this come about?

It began with the adoption of the law itself.  With control of the House and the 60 votes in the Senate necessary to block a Republican filibuster, Democrats believed they could pass almost any bill they wanted.

Still, they did not have enough support in their own party for a single-payer system, used by most developed countries.  But they could pass a bill that would improve on a system in which health care providers could charge ever-higher prices and insurers could pick who they would cover and set the premiums.

The result was an unusual hybrid system with both some public elements and a continued role for the traditional players.  And it would prove to cover millions more.

The bill shuttled back and forth between the House and Senate.  Secure in their belief they could pass the bill on their own, the Democrats made no concessions to Republicans, especially then Maine GOP Sen. Olympia Snowe, who had shown a willingness to try to forge a compromise.

Then Massachusetts Sen. Ted Kennedy died and was replaced by a Republican, eliminating the Democrats’ ability to block a GOP filibuster.  The only way the bill could pass was by taking the incomplete version already passed by the Senate but without any more House changes and adopting it.

This virtually guaranteed Obamacare would become a bitter issue between the two parties.  The mandate – the requirement for many people to purchase insurance or pay a penalty – was opposed by all Republicans, though it had been a GOP idea a few years earlier.

The situation was worsened by a combination of inaccurate promises and poor promotion.

The president claimed the law, which almost certainly he had not fully read, would allow people to keep their current coverage.  That should have been true, but was not.
Its supporters also said it would not increase costs.  Yet, how could Obamacare, which would insure additional millions of people, cost no more than then current coverage?

These shortcomings were small compared to the complete failure of the White House and the Democratic leadership to promote the law.  Beginning with the 2010 congressional elections, the GOP made Obamacare a national issue, while the Democrats said nothing, mistakenly believing the elections would turn on local issues.

The result was the issue belonged to the Republicans, and the Democrats were continually fighting off attacks or trying to dodge them.

The debate over Obamacare finally came to set the tone of the broader political debate in the country.   
The Republicans could go from attacking the increased government role under Obamacare to opposing the role of government across the board.

And just as with their failure to argue for Obamacare, the Democrats have allowed themselves to be placed on the defensive, at best, or to become anti-government GOP copycats, at worst.

Sen. Chuck Schumer, a part of the Senate Democratic leadership, now says the whole idea was a mistake, and the Democrats should have focused on other issues.

Jonathan Gruber, an economics professor and key player in drafting the law, is now running off at the mouth about how clever he was in fooling Americans about the very nature of insurance, in which premiums paid by some people cover the costs of others.

If the Democrats refuse to be, well, Democrats, they will continue to turn the government over to the Republicans.  This year’s poor turnout in the congressional elections was caused mainly by Democratic voters staying home.

The Democrats could propose the necessary measures to repair Obamacare, even if the GOP refuses to adopt them.  Merely trying to block repeal moves by the Republicans or their friendly Supreme Court majority is not enough.

While the time has passed for offering spending measures to cure every ill, the Democrats could be forthright in making the case for the role of government.  For example, roads and bridges desperately need repair, and that takes government funds.

And, hopeless as it may seem, both parties should seek areas for bipartisan action.

Friday, November 28, 2014

Filibuster excesses cause Senate failure

The Keystone XL pipeline was defeated in the U.S. Senate, because only 59 of the 100 senators voted for the project.

That same day, a bill to reduce N.S.A. surveillance of Americans also failed to pass, because a vote to end debate on the bill only received 58 votes.

Wait a minute.  Where in the Constitution does it say that it takes more than a majority to pass a bill in either house of Congress?  Nowhere.

These two votes – based on the Senate filibuster rule that requires 60 votes to end debate – teach several lessons about how the U.S. government functions.  Or doesn’t function.

On the pipeline vote, the issue was less about whether it was a good idea and more about giving Sen. Mary Landrieu, a Louisiana Democrat facing a tough uphill fight in a runoff election, a victory to take home to the voters.

The senators knew that, in January, when there will be a lot more GOP senators, it will be easy to get the 60 votes and adopt the Keystone XL bill.  So the vote was pure political theater.

All 45 Republicans voted for the pipeline.  So did 14 Democrats, including Landrieu and 4 Democrats whose seats will be taken by Republicans next month.  Most of the remaining 10 Democrats are moderates, coming from states that lean Republican.

As usual, the Democrats showed far less party discipline that the Republicans.  Sen. Susan Collins may be a GOP Maine moderate, but she voted the straight party line.

And Sen. Angus King may be a Maine independent, who even considered joining the GOP Senate caucus, but he voted like a loyal Democrat.  He said the Senate should not vote on a mere interstate construction project, though it regularly votes on naming federal buildings.

On the N.S.A. spying bill, all Democrats voted to end debate.  So did three tea party Republicans, who dislike the government invasion of privacy.  All the remaining GOP senators voted, in effect, against the bill.  But there were not enough votes to end debate.

Both Collins and King voted the party line, opposed to one another.

The obvious conclusion is that the filibuster is not consistent with the majority rule the Senate is supposed to use.  Now that it is used virtually all the time on important bills, it’s a recipe for getting nothing done.

The filibuster means that either party, having 41 seats, can block any legislation.  The Republicans have been in that position and the Democrats will be there in January.  The minority can prevent any new legislation.

The rule requiring the 60 votes can be changed by majority vote, but such a change is unlikely.  Both parties want to retain the power for use when in the minority.

Why do senators vote the party line?  Their loyalty is rewarded by good committee assignments, distributed by party leaders who impose discipline.  As a result, they are loath to oppose the reelection of their leaders, because if they end up on the wrong side of that vote, they lose influence and power.

There is another lesson in the Keystone XL vote.  It shows that, without the filibuster, a later Senate could reverse a decision made by an earlier Senate.  Knowing that was possible could place limits on extremes in the first vote.  But that’s unlikely to happen as senators cling to the system they know.

In short, there is little chance the filibuster will disappear.  The Democrats did eliminate it for most federal judicial appointments, many of which were blocked by a GOP effort to keep President Obama from putting judges on the bench.

But it will remain for legislation.  And that can easily mean the federal government will continue to do nothing. 

This has been the least productive Congress in history in terms of bills passed.  At the same time, a post-Second World War record for low voter turnout was set when it fell to 36 percent in the recent congressional elections. 

Surveys show voters hold Congress in low esteem and want it to act.  Their failure to show up at the polls for congressional elections may have been more a statement about its ineffectiveness than a verdict on Obama’s policies, as his opponents claim.  This year’s low turnout is evidence of the alienation between the electors and the elected.

The insistence of the Senate to keep the filibuster only promises more inaction.  Senators become so preoccupied by Washington games and their own political survival that the gap grows larger between the federal government and what the American people want. 

Friday, November 21, 2014

Obama’s immigration move and partisan war

In just 30 years, the U.S. population will increase by 84 percent, mostly resulting from a massive and wave of immigrants.

The ethnic make-up of many parts of the country will change.  The economy will experience major growth, though it will suffer through deep recessions.  The income gap between the wealthiest and the poorest people, many of them immigrants, will widen, and only small part of the population will control most of the American economy.

This is not today’s America.  That was the United States in 1880.

Skip ahead exactly a century.  In the next 30 years, the U.S. population will increase by 36 percent, including 10-11 million immigrants who do not enter the country legally.

The ethnic make-up of many parts of the country will change.  The new arrivals will take unappealing jobs, shunned by citizens, as they escape economic privation and physical danger in their home countries.  They will rise in their new freedom.

The economy will experience steady growth, though it will suffer through a deep recession.  The income gap between the wealthiest and the poorest people will widen, and only small part of the population will control most of the American economy.

In both periods, many U.S. citizens resent the immigrants and want them excluded from the country. The difference between the two periods is that, during the first, the United States did not limit immigration while in the second it did.  Presidents George W. Bush and Barack Obama each expelled about 2 million illegal immigrants.

Still, there are an estimated 11 million people in the country who came across the thousands of miles of American borders that are virtually impossible to patrol or wall off satisfactorily.

Their presence is a tribute to the appeal of American political and economic freedom.  But these so-called undocumented immigrants present both opportunities and challenges.  

Many immigrants provide essential contributions to the economy, performing necessary but often undesirable jobs.  As they join the economy, they become consumers.  As a group, consumers support about two-thirds of the economy, so adding to their number promotes growth.

But the new immigrants can impose costs on the economy as well.  They require public services ranging from education for their children to social welfare assistance.

And they are in the country without legal right, a fact that concerns some law-abiding citizens.  Each year, they become more integrated into American society.

Few Americans believe it would be possible to send all 11 million out of the country and back to their places of origin.  But many believe that people who broke American law should not be rewarded with citizenship.

The president and Congress understand the complex issues and the inevitable need to solve the immigration problem without massive deportations.  But partisan politics, pandering to one side or the other and a lack of leadership has blocked agreement on a solution. 

Now, with no more elections left in his term, Obama proposes to allow a large segment of the new immigrants by directing his administration not to seek to deport them.  Using his discretion about which lawbreakers to pursue, the president could set a dangerous constitutional precedent.

While allowing millions to stay in the country and work, the federal government will seek to block further illegal immigration and to deport recent arrivals.  In Obama’s view, some action must be taken, because the Republicans choose to do nothing.

Congressional Republicans are furious, and charge Obama with abusing his powers as the chief executive by allowing immigrants to remain in the country who should be deported.  But they must know that mass deportation is both impossible and undesirable for the economy.

The president may gain support for the Democratic Party from the growing Hispanic community and may even be taking the kind of action that is inevitable.  But it amounts to another hostile move in the partisan conflict paralyzing Washington.

Now, it looks like the GOP has a choice between a counter attack and making a counter proposal.  So far, the Republicans have offered little more than proposing tighter border controls.

Instead of continued partisan games with an issue of great national importance, the two sides should sit down and try to negotiate.  And the public should be able to understand which side is willing to compromise to resolve the issue before we arrive in another election year.

The lesson of this year’s elections is probably less that the voters rejected Obama than that they urgently want divided government to work.  Here’s an immediate chance to respond to that demand.

Wednesday, November 19, 2014

Should we abandon plurality elections?

Last week, I wrote that increasingly major elections are won by pluralities – winners having the most votes – rather than majorities – winners having more than half the votes.

The column drew many thoughtful responses, which prompt further consideration of the problem of plurality winners.

The threshold question is whether we ought to require majority winners.  Is it right that a person might win a three-way election with 34 percent of the vote?  Is that the same problem as when a candidate fails to gain 50 percent, because of a fringe candidate who gets, say, three percent?

The most frequent answer is that both risks are acceptable.  Throughout American history, the system known as “first past the post” has been used.  With the use of single-member districts, this system promotes two candidate races.  People understand that voting for a third party candidate could amount to a vote for the winner. 

But there have always been some multi-candidate races, and people have accepted results when the winner did not receive a majority.  Because some people wish to make a statement with their votes, rather than picking a winner, there will always be multi-candidate races.

So most likely, nothing needs to be done.

Some comments suggest I got the intentions of the Founding Fathers wrong. 

In my view, the acceptance of plurality winners is probably not what the Founding Fathers intended.  In The Federalist, those arguing for the Constitution opposed the creation of “factions,” hoping instead for general accord.

But they had to admit that, if there were elections, there were likely to be two sides.  During the debate on the Constitution itself, there were already two organized and opposing groups – Federalists and Anti-Federalists – of almost equal strength.  

But I concede they saw multi-candidates races, for the First Congress, whatever their preferences. 
The presumption of two parties and two candidates has carried over until today.  For example, look at the composition of the Federal Election Commission with its equal representation of two parties. 
If people reject plurality winners and want only majority winners, the only way to do that is to have runoff elections with two candidates.

Ranked choice voting cannot produce that result, because voters may end up electing “everybody’s second choice,” even though that candidate received fewer first place votes than another candidate.

While ranked choice allows for an artificial runoff and costs less than running a real runoff, it lacks the character of a political campaign in which candidates try to convince voters, some of whom did not even participate the first time around, to support them.

In fact, ranked voting is much like a plurality election in which voters supporting weaker candidates do not seem to participate in the choice between the two front-runners.  In ranked voting, they are similarly simply deleted if they did not support one of the two front-runners.

As noted earlier, in the Portland ranked voting contest, 18 percent of the voters took no part in the ultimate choice.  Their votes were thrown away.

If we want those people to participate in the final choice, then a real runoff is necessary.

It seems clear that the discussion of making Maine the first state to use ranked voting for major elections is based on the last two gubernatorial elections.

The theory is that, if voters for Democrat Libby Mitchell in 2010 had been allowed to express a second choice, independent Eliot Cutler would have been elected.  Republican Paul LePage, the plurality winner, would have been defeated.

In 2014, if voters for Cutler had been given a second choice, they might have voted for him with a second choice for Democrat Mike Michaud with LePage the loser.  In fact, Cutler may have believed that, with that kind of voting, he would have finished second and won with Michaud’s second choice votes.

Cutler voters might have helped make that possible by refraining from casting second choice votes for anybody.

On the other hand, understanding he was sure to lose, Cutler could have thrown his support to Michaud.  Some Cutler voters reacted to his “long shot’ statement; perhaps more would have reacted to an outright withdrawal. 

Even if diehard Cutler supporters had declined to vote or voted for him on principle, they would have known they were no longer taking part in the real choice, and the winner would have had a majority of the voters trying to elect a governor.

Ranked choice voting is a poor substitute for real democracy.  If we decide we want only majority winners, they should be real winners of real elections.  Just because ranked voting costs less than a runoff is not good enough to abandon majority rule.

However, it’s doubtful we insist on majority winners.  Americans have always accepted plurality winners and are likely to continue to do so.

In addition to my weekly post based on my newspaper column, I add an occasional mid-week post on a current issue.