The State of the Law, 2013 Edition


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.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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