The State of the Law, 2013 Edition

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Prisoner abuses, DNA testing, and changes to marijuana rules -- a review of what tonight's State of the Union speech should call for, but probably won't

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Between now and tonight, when President Barack Obama delivers another State of the Union address, a million words will be written and spoken by America's chattering class about what he will or should say or what he won't or shouldn't say. Then millions of us will watch to see whether Supreme Court Justice Samuel Alito shows up or stays away from the House chamber, while millions more of us will tune in instead to see how Snooki and Jwoww are doing over on MTV.

I don't have standing to offer analysis on most of the political issues the president will raise. But there are dozens of serious legal issues that would be worth a mention in the speech. In fact, for this particular progressive president -- the constitutional scholar that he is -- many of these individual issues coincidentally merge into a common theme. And common themes make for great speeches.

With that in mind, here's a passage from an ideal speech the president could candidly deliver. He won't, of course. He can't. But still:


My fellow Americans, the state of American law is strong. But it can always be stronger. Fifty years ago this coming August, in his letter from a Birmingham jail, Martin Luther King wrote that "injustice anywhere is a threat to justice everywhere." He was right. We can always do more in government to make our laws more just, to administer them more fairly, and to guard against the excesses that come to people, both the guilty and the innocent, both the rich and the poor, when the machinery of the law is allowed to run over them unchecked by earnest balancing forces.

Tonight I want to suggest some specific ways we can renew our commitment to these principles while remaining true to the Constitution. For the great, living document on which we have built a nation, and by which we seek to live our lives, is not just a set of rules that judges and politicians and citizens must try to interpret and obey. At its best, it is also a series of ideals, markers toward which we all should strive. The ideals are eternal; we teach many of them to our children in school: Be honest. Respect others. Don't be cruel.

Today in America, on the most basic level, government too often fails to guarantee to the governed not just the right to vote, but the right to vote in a manner that respects the solemnity of the act and the dignity of those who seek to participate in our democracy. In November, I said off-handedly that "we need to fix" our election laws so that people don't have to wait seven hours to vote. But it's more than that. As a nation, as a people, we need to confront and defeat the partisan premise that the law should make it harder, not easier, for long-time registered voters to cast a ballot.

I am against voter fraud. Everyone is against voter fraud. But no judge anywhere has declared that voter fraud is a common occurrence. And therefore it should not be used as a partisan justification to disenfranchise the elderly and the ill, the young and the poor, people of color and people who just can't afford to own a car. I call on Congress tonight to renew its commitment to voting rights by funding state initiatives to modernize voting systems, including voter registration procedures, and by revising current federal law to more broadly protect the rights of all Americans to be free from political voting tricks.

Today in America, on the most basic levels, government also has failed to deliver to hundreds of millions of its constituents the timely administration of law. One of the basic foundations of any capitalist society is a functioning and fair judicial system -- one that resolves disputes and creates the legal certainties that markets demand. But today too many Americans cannot get their day in court because their courts are closed by budget cuts, because their trial judges labor under staggering case loads, or because lawmakers here in Washington have failed to timely confirm even those judicial nominees with broad bipartisan support.

This is unacceptable. No country that considers itself first-rate should have a third-rate judicial system. No country that professes to adhere to a rule of law should tolerate empty benches and dark courthouses. No country that respects its judiciary should permit its judges to be hassled and harried by unworkable dockets. I now ask the Senate to speed up the pace of federal judicial confirmation votes. And I call on lawmakers everywhere to restore state judiciaries to their rightful status as a co-equal branches of government.

Part of the reasons our courts are so clogged is that our criminal justice systems, our courtrooms, and our prisons teem with non-violent offenders, many of them juveniles. For generations we have implemented policies which have made us, by far, the most incarcerated nation in the history of the world. It makes us feel safe. It's been a boon to the prison industry. But in truth, it is destroying us. Pat Robertson was right last year to say that it is wrong for California to spend more on prisons than it does on schools. It's not just wrong. It's immoral. And entirely unsustainable as an economic or political policy.

Around the country, away from Washington, we are seeing at last a political, economic, and legal movement away from the machine-like processing of all these men and women. We are seeing at the state and local level more sensible drug laws and enforcement. We are seeing creative experiments. There is no reason why the federal government ought to be lagging so far behind the curve. There are self-defeating federal laws which can be culled from the books by Congress and tired drug policies which can be reevaluated by the Executive branch.

One of these policies has to do with marijuana. A lot of people have made a lot of jokes about me and this subject, but there's nothing funny about it. Citizens in 18 states and the District of Columbia already have declared they believe there is medicinal value to marijuana and that those who need it to cure their pain should not be punished. That's one-third of the nation. This year, another 20 states may take up new marijuana laws, including laws that would legalize, regulate, and tax the drug. I'm not going to endorse that position today. But I believe we can more intelligently fight the war on drugs.

I have today instructed officials at the Drug Enforcement Agency to immediate undertake a comprehensive review of the federal government's continuing classification of marijuana as a Schedule 1 drug. It makes no sense that millions and millions of Americans, including doctors and military veterans, swear by its medicinal use, and yet the federal government considers the drug void of any such value. Someone, somewhere, is wrong. We need to resolve this argument, quickly and accurately, so that we can adequately and accurately shape our drug policies for the future.

And I call upon Congress here to devote time and energy to this issue this session. Those of you in this room who fly the banner of federalism, who complain so often and so loudly about the broad sweep of federal power, who are always seeking ways to diminish the extent of federal authority over the states, I ask that you reconcile those positions with your positions on the continuing federal enforcement of these types of drug laws. And I ask that you weigh the costs and benefits of federally regulating and taxing the drug.

Something's got to give, too, with the conditions of confinement for American prisoners. I am terribly concerned with the stories I read and see about American prisoners being held in solitary confinement for long periods, or about those who are denied medical or mental health treatment, or about those who are otherwise abused or mistreated by their guards. A society is judged not just for how it treats its best, but for how it treats its worst. And even the convicted and condemned have rights. This is not just a constitutional imperative. It's not just cost-efficient. It's also the right thing to do.

So I announce today that I have asked the Attorney General to undertake a Justice Department review of the policies and practices of the Bureau of Prisons as they relate to the treatment of these prisoners. It is my hope that the Office of the Inspector General will quickly undertake this work and report its recommendations for legislative review. I also call upon Congress to increase its oversight over the Bureau of Prisons, and to investigate the private prison industry, which today wields so much economic power in so many jurisdictions. It is time for political answers to questions our judges will not ask.

Which brings me to another area where a renewed commitment to constitutional ideals tracks with contemporary concerns for cost efficiency, where we can actually save more money by doing more justice. I read over the weekend that the State of Texas has paid $65 million since 1992 to 89 men and women who were wrongfully convicted there. That's just the costs of the settlements. The litigation costs of those legitimate appeals for wrongfully convicted defendants is far greater. We can do better. In Texas, in fact, they are doing better. They've begun to reform their laws and their way of thinking about the issue.

I have asked the Attorney General to look into ways in which federal officials can do more to help state authorities get these cases right the first time. And it is my hope that the Justice Department will litigate criminal cases with these neutral principles in mind. I call upon Congress to help get more relevant DNA testing into more criminal appeals. I call upon the Judicial Conference of the United States to recommend ways to make justice more equal.

Just yesterday, again in Texas, a man named Randolph Arledge was partially exonerated. But first he had to spend nearly 29 years in prison. Mr. Arledge is here tonight -- I'd like him to stand up and be acknowledged. Taxpayers paid for his time in prison. All over the nation, taxpayers pay for all of the time that wrongfully convicted prisoners spend in jail. It is time we encouraged prosecutors and judges to strive more to value accuracy over efficiency, to loosen up the appellate rules so that reviewing courts can more aggressively evaluate trials.

If this means it is time for Congress to seriously reevaluate the Anti-Terrorism and Effective Death Penalty Act, then so be it. The history of the past 17 years has proven that Congress went too far in 1996 when it dramatically limited the ability of federal courts to review state court convictions.

For too long in America, the politics of crime and justice have been partisan ones. But this is one area today, oddly enough, where what brings us together far outweighs what tears us apart. None of us wants to waste money on inaccurate trials. None of us wants to pay for prisoners who shouldn't be in jail. None of us wants to be harried by overzealous police or prosecutors. Most of us know someone who is sick who benefits or who could benefit from medical marijuana. And all of us want to spend more money on schools and less on prisons. We owe it to ourselves, and to our children, to at least try.


I know. I know. I'm dreaming. But I think there is a political coalescence among these topics that is growing, and which either party would be wise to identify, acknowledge, and own over the next few years. The conservative case for fewer drug laws and accurate trials has gotten louder over the past five years. And the liberal case for federalism has carried more weight lately as well.

For many reasons, the speech above is still politically unthinkable today. But it is less unthinkable than it was 29 years ago, when Randolph Arledge first went to prison for a crime he did not commit.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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