Rory Fleming

Why Merrick Garland is a disheartening pick for attorney general

When a government agency is as punitive, secretive and capricious as the US Department of Justice often is, trying incremental reform can feel about as satisfactory as non-alcoholic beer. That was the tack under Obama's Attorney General Eric Holder, Jr., and it almost certainly will be under Biden's choice, Merrick Garland.

Politically, Garland may seem a feel-good choice to fill the role; he became something of a martyr in 2016, when Mitch McConnell blocked the vote on his confirmation for a Supreme Court seat. Many Democrats will take satisfaction in thus getting one over on obstructionist Republican leaders.

Yet elevating political celebrities often fogs up the picture of how people behave in government. And it is clear from Garland's resume that he is no John Lewis or Stacey Abrams Democrat, forging a reputation in the heated arena of civil rights fights. Learning nothing from the successful "progressive prosecutor" movement, Biden has appointed as the nation's "top cop" not a civil rights lawyer or public defender, but someone who appears to be an inflexible supporter of mass incarceration.

Merrick Garland started his legal career in 1977 as a law clerk for Judge Henry Friendly and Supreme Court Justice William J. Brennan, Jr., two of the most famous US judges of all time. After a two-year stint at the US Department of Justice, Garland moved into private practice. Then, in 1985, Garland became a partner at Arnold & Porter, one of the largest and most elite law firms in the country.

Back in that gilded era, that "meant a million [US dollars] or more a year" for partners. But in 1987 the stock market suffered the worst crash since the Great Depression and law partners' wallets took a big hit—typically making around $250,000 by the end of the decade, according to one author. Even so, the dollar was worth around twice as much as it is today, and then-partners worked significantly less than their successors.

In 1989, something deeply unusual happened. Only five years after Congress's highly punitive Sentencing Reform Act of 1984 killed federal parole for all defendants, Garland abandoned his lucrative career in the private sector to become a rookie federal prosecutor.

Even today, new assistant US attorneys make a minimum of $55,756, and best-paid first-years still fall short of six figures. Because of the allure of higher-paying private sector jobs, recruiting and retaining federal prosecutors is a consistent national issue. That is even more the case in high-salary districts like Washington, DC, where Garland started as a prosecutor.

Senator Lindsey Graham (R-SC) remarked in 2006 that federal prosecutors "have got to do it for more [… than] the money, because part of it is just patriotism." Yet, after his rise to federal judgeship, Garland's apparent patriotism seemed code for the idea that the government of the United States is usually right—as comprehensive accounts of his judicial career across many areas of law attest.

Criminal justice reform, including drug policy reform, has for decades been a lowest-rung priority for national-level Democrats. It may therefore be little surprise that Garland has been said to be at his least liberal when it comes to criminal law and procedure.

Evan Lee, a UC Hastings law professor, analyzed Garland's record on criminal justice and procedure issues, concluding that "he's a traditionalist, a moderate-to-conservative in the criminal law and criminal procedure realm." Lee even ventured to say that Garland was less sympathetic toward people caught in the broken justice system than Antonin Scalia—the deceased, highly conservative Supreme Court justice he was slated to replace.

Writing at SCOTUSBlog, Tom Goldstein, an attorney who frequently practices before the nation's high court, explained there are only eight cases where Garland sided with a criminal-case defendant over the government. Notably, he never wrote an opinion vindicating a defendant's constitutional rights.

The harm reduction community can also find many grounds for concern over the prospect of Garland as US Attorney General under Biden. Take the late-1990s case of Talib Watson, a man originally convicted on a drug charge by a prosecutor who misstated evidence before the jury: Garland dissented from a grant of a new trial from the Black man and Black woman who constituted the two-judge majority. (Both federal judges and federal prosecutors are overwhelmingly white men.) In his written decision, Garland quipped that "Although the prosecutor's memory was worse than that of defense counsel, it did not vary significantly from that of the [trial] judge."

Perhaps Garland could afford to write off egregious prosecutorial errors (or, perhaps, even purposeful misconduct) as "innocent misrecollections," as he did in his conclusion. But this was not so for Talib Watson, who had been serving 360 months-to-life in a federal prison.

In another case around that time involving Richard Spinner, who was convicted for selling crack cocaine, Garland argued that the federal prosecutor having introduced irrelevant, prejudicial character evidence could not have mattered to a jury's factual determination of guilt. This was despite the evidence in question—a girlfriend's letter describing "drinking and cursing and laying up"—almost certainly having been introduced to sway the jurors' view of the defendant. In fact, the trial prosecutor cross-examined the girlfriend, then openly speculated in front of the jury that her language in the letter must have been veiled references to the drugs.

Garland also successfully handled some of the most serious criminal cases in modern US history, having prosecuted the people responsible for the Oklahoma City bombing, as well as the Unabomber. But such cases are relative rarities within the total federal prosecution docket. In contrast, drug-law violations represent approximately 30 percent of its caseload. Immigration-related charges alone recently reached a whopping 52 percent. Areas like these form the bulk of what we can expect Merrick Garland to do with his time as AG.

Viewed in isolation, Biden's pick for attorney general appears to be even a regression from the incrementalist approach of Obama AG Holder.

This article was originally published by Filter, a magazine covering drug use, drug policy and human rights. Follow Filter on Facebook or Twitter.

Why a city’s new marijuana delivery plan is an important move

During the pandemic, services that deliver food and other supplies have become invaluable. Some companies in the industry, such as the Philadelphia-based GoPuff, also do beer and liquor deliveries for adults. In states like Colorado, where cannabis is legal and regulated somewhat like alcohol, home delivery is the next frontier of a new and thriving industry.

This is exemplified by a new ordinance approved by the council of Aurora, Colorado on December 7, which will allow marijuana deliveries to begin in the city in January. Cannabis delivery is not uncommon in the US, but it is usually a privilege reserved for medical cannabis patients. Aurora appears to be the first Colorado municipality authorizing delivery services for nonmedical consumers. Yet the significance of this measure reaches far beyond customer convenience.

Alcohol and cannabis do not have the same history, even if they both were illegal on US soil at one time. While the notion of illegal alcohol businesses conjures images of 1920s white gangsters, flapper dresses and speakeasies, people who sell marijuana—and above all people of color—have faced arrest, prosecution, and harsh terms of imprisonment for close to a century longer.

State legalization campaigns have often been criticized for centering the white experience and not doing enough to address directly the racist mass enforcement of anti-cannabis laws. In many states, including California, the law forbids people with cannabis-related criminal convictions to receive licenses for cannabis-related business ventures.

That has been true in Colorado, too. In Denver, for example, the legacy of racist enforcement has without doubt contributed to the underrepresentation of Black cannabis business owners and employees, at only 6 percent overall, and the overrepresentation of white cannabis business owners, at 75 percent—figures found by a June 2020 study.

As a result, organizations like Denver-based Color of Cannabis are now fighting to ensure that new laws regulating cannabis businesses are racially just and socially equitable.

Color of Cannabis was involved in the successful push for a new state law that created a category of social equity applicants who would receive first dibs on cannabis business licenses—a person is eligible if they or an immediate family member were arrested or convicted on a marijuana charge. However, Sarah Woodson, a Black cannabis entrepreneur and Color of Cannabis's director, has explained to policymakers that this alone does not solve the inaccessibility problem of this new industry for people of color most impacted by cannabis-enforcement injustices.

Woodson achieved another important win in Aurora, where she helped shape the city's cannabis delivery ordinance. Crucially, social equity applicants will receive exclusive consideration for the first three years of the city's new cannabis delivery program.

This focus on social equity is not without its detractors, however, most of whom cite apparent legal fears. In Aurora, city councilmembers Marsha Berzins and Dave Gruber expressed concern over potential issues stemming from temporarily barring certain applicants from the industry.

But even in a mainstream political climate that is still far from authorizing widespread reparations to marginalized communities of color for everything from the War on Drugs to slavery, fear over the mere risk of hypothetical legal battles should not stop ethical politicians from taking action for equity where they can. The constitutional contours of equity policies even have a significant level of clarity after decades of Supreme Court decisions on the issue.

While, for example, in the college admissions context, explicit racial quotas have been deemed unconstitutional under Gratz v. Bollinger (2003), the Supreme Court decided the same year in Grutter v. Bollinger that admissions criteria benefitting marginalized minority groups are constitutionally permitted—so long as group status is not solely determinative of admission.

It is hard to say for certain that the Aurora ordinance would be iron-clad in court. But it is certainly worth fighting for, given what is common knowledge of the racist history and practice of the drug war.

This article was originally published by Filter, a magazine covering drug use, drug policy and human rights. Follow Filter on Facebook or Twitter.

The disturbing and growing reach of Amazon's surveillance

For many, Amazon represents not just a massive online retailer, but the harbinger of a new caste-based society. When Amazon wanted to create its second headquarters in Queens, a huge intersectional coalition of grassroots social justice activists took to the streets to protest. After the coalition gained support from political luminaries like Alexandria Ocasio-Cortez, the corporate monolith gave up its expansion plan in the borough.

One of the major concerns activists brought up was that poorer residents would have been pushed out of their homes in droves, thanks to the skyrocketing real estate prices that would almost certainly follow. But gentrification, whereby these residents are replaced by non-local, higher-wage young professionals from around the country and world, also ironically correlates with local NIMBYism ("Not in my Backyard") and a troubling trend of surveillance.

Amazon Ring is a smart doorbell-camera combo that is now relatively standard fare for newly constructed middle-to-upper class homes, especially in cities. The outdoor camera provides a live feed to the homeowner's smartphone, and also records video footage when its motion sensor is triggered. The camera is often not trained precisely on the doorstep of the home, but extends to the public thoroughfare, especially in urban homes without a large front yard.

Recently, the Electronic Frontier Foundation called out an imminent feature in Jackson, Mississippi, whereby police can tap into Ring footage in real time.

As a result of Amazon teaming up with hundreds of police departments and counting, these devices are increasingly hooked up to police monitors.

Most recently, the Electronic Frontier Foundation called out an imminent live-streaming feature in Jackson, Mississippi, whereby police can tap into the Ring footage of participating residents in real time. The society-as-panoptic prison as envisioned by French philosopher Michel Foucault has never been more real.

While data are still scarce, one can predict that Ring partnerships will not help police solve many serious violent crimes. Instead, the video footage will provide irrefutable evidence for petty violations of law arising from difficult personal circumstances, such as "loitering" as a homeless person, or public drug use. Pro-reform prosecutors are among those who increasingly acknowledge that such "crimes" are public health issues, and that their prosecution creates public harms.

Ironically, Jackson, Mississippi is a Democrat-dominated city, with nominal progressives of color holding both the mayor and District Attorney seats. But "progressivism" is too often seen as compatible with NIMBYism. Mayor Chokwe Antar Lumumba, seemingly in support of this massive escalation in surveillance, explained that "It would save [us] from having to buy a camera for every place across the city." Newly elected District Attorney Jody Owens, who campaigned as a moderate criminal justice reformer, and won despite facing a long list of sexual harassment allegations, has failed to comment on the issue.

NIMBY is shorthand for what is ultimately an ideological system based on exclusion. Those labeled undesirables by the NIMBYs are shunned or persecuted in the name of neighborhood "quality of life" or "historical preservation."

NIMBYism frequently acts directly against harm reduction, as seen for example, in the blocking of Philadelphia's mooted first safe consumption site in the nation, or campaigns against syringe programs. But perhaps the number one manifestation of NIMBYism is the cutting off of new home-building plans, above all when new developments are intended for low- or mixed-income populations.

NIMBYs often hardly bother to conceal the prejudices behind their objections. As Oakland Mayor Libby Schaaf said about hearings related to housing in Cupertino, California after the creation of Apple Park, "These were offensive things that were said during these hearings, about low-income people, 'uneducated' people, moving into the community. That is racist. That is classist. It's NIMBYism, and it does not serve our housing or environmental agenda."

Controlling the housing stock is a great way to ensure homogeneity of race and class in a neighborhood, but still does nothing to stop all kinds of people from shopping, working, walking around or hanging out in the area. That's where police have often become the most important enforcers of a NIMBY agenda.

And now, thanks to the heavy mainstreaming of products like Amazon Ring, NIMBYs do not have to take the risk of going viral for calling the police on a person of color for doing nothing.

It will be important for privacy advocates and harm reductionists alike to keep abreast of Ring developments, especially in Jackson, in the coming months. The desire of some Americans to constantly search for incriminating evidence on people they deem undesirable, often due to race, health status, drug use or poverty, demands constant vigilance in kind. It also makes the decriminalization of drugs more crucial than ever.

This article was originally published by Filter, a magazine covering drug use, drug policy and human rights. Follow Filter on Facebook or Twitter.

My Psychedelic Love Story: An interview with filmmaker Errol Morris

On the surface, Joanna Harcourt-Smith had the kind of life many people dream of. As a young socialite in the 1960s, she partied with some of the era's most fascinating and controversial cultural figures. "I always wanted to be with an outlaw," she told filmmaker and documentarian Errol Morris in his newest feature, My Psychedelic Love Story. And she fulfilled that dream, too, as LSD pioneer Dr. Timothy Leary's romantic partner and freedom advocate.

Together, Harcourt-Smith and Leary fled across Europe and all the way to Central Asia in 1972 to escape the long reach of US law enforcement. Alas, it did not work for long. The two were captured in Afghanistan. Leary was extradited to be sentenced to 20 years in federal prison for crossing the US-Mexican border with about one ounce of cannabis.

After a few years of heavy activism and media engagement from Harcourt-Smith, Leary was released early, in 1976. He had become an informant for the FBI, although no prosecutions arose from his role and he later said that he did not provide genuinely incriminating information.

Placed together in the witness protection program, the couple moved to New Mexico. But they lived there together only briefly, until Leary abandoned Harcourt-Smith without a word of goodbye.

My Psychedelic Love Story showcases filmmaker Errol Morris in a more tender, introverted mode than when he made his most famous film, The Thin Blue Line (1988). Rather than presenting a grand mystery like its forerunner, his newest film is about the personal truths of a life lived amid a sweeping dramatic arc beyond one's control.

Joanna Harcourt-Smith died in October—the month before the release of Morris's film. She apparently never knew whether the FBI and CIA had orchestrated some of the biggest events in her life, using her as a tool to take down Leary, whom then-President Richard Nixon called "public enemy number one." What she tells us in this film is what she did know and feel, backed up by an impressive amount of archival material stored around her home.

Errol Morris was kind enough to answer some questions about the film, and you can watch the trailer below. Our interview has been lightly edited for length and clarity.

Rory Fleming: Given everything that is going on in the world, why Joanna Harcourt-Smith? Why now?

Errol Morris: Often, you don't choose stories, stories choose you. Joanna contacted me. Before that, I did not know her book or her story. She contacted me because she was a fan of Wormwood [Morris's miniseries about the life and suicide of Frank Olson, a CIA scientist who experimented with LSD and mind control], as well as my son Hamilton's Pharmacopeia on Viceland. She hoped we would like her story and that both of us could be involved. Then I read her book and decided I wanted to make the film.

There is an appealing quality to entering a story through something other than the front door. I was not interviewing Hamlet, as Leary is quite dead. Joanna gave unique insight into the Timothy Leary story, and her story is quite incredible in and of itself.

Despite the excitement of many parts of her life, the film shows that Harcourt-Smith also experienced great suffering as a result of childhood abuse and later governmental persecution. Yet she seems to be in such good spirits in the film. What was she like to work with?

I love Joanna. I spoke at her Zoom memorial service after her passing. As I said there, to know Joanna is to love Joanna.

As you make projects, there is this sense that if you know what you are going to get, why bother? Some people think that the documentary as an artform is about sticking someone in front of a camera and having them talk, but it's more than that on both sides. In a truly great documentary, the person interviewed is a performer. That's Joanna. She comes alive in front of the lens of the camera. It was a sheer delight.

One thing that is fascinating while watching the film is thinking about how much things have changed. Earlier this month, Oregonians decriminalized the possession of all drugs. Cities like Oakland, Denver and DC recently voted to decriminalize psilocybin. Did that come to mind while making this film?

I was amazed that this part of the story with Leary involved him crossing the US-Mexico border with an ounce of pot. A 20-year sentence for that is crazy, what with the modern US now quickly decriminalizing it. It is really crazy. It is also crazy that the entire governmental apparatus was dedicated to taking him down. Nixon called him the "most dangerous man" in America. It was a different era altogether.

That said, it seems that the US always finds a new scapegoat, some new cause undermining the fabric of our country. Many aspects of that speak to our current moment.

The film feels almost postmodern, given that Harcourt-Smith herself is not sure whether she was used by the US government as a "Mata Hari." Do you think she knew the truth and was unwilling to face it, or that there were so many layers of obfuscation around Leary turning informant that the truth could no longer be ascertained?

One of the final versions of the film had a card at the end telling the viewer that I contacted the FBI and CIA for their investigatory files on Joanna and Dr. Leary. Both agencies responded, telling me they could neither confirm nor deny the existence of such files.

However, I would argue it is not postmodern to not ascertain truth. It is like I've said about Rashomon [Akira Kurosawa's famous film about four people recounting different versions of the events leading to a man murdering his wife]. There is this idea that Rashomon is about how reality is all just different perceptions of truth. But it is more about the avoidance of—rather than the nonexistence of—truth. It is absolutely crucial to find the truth and pursue the underlying reality.

Do I think Joanna ultimately knew? No. I investigated and I do not know either. The center of the film became not whether the CIA used Joanna as a plant. Instead, it became about the love affair, and questions of why did Leary abandon her and "who am I?" And I was immensely moved by the quest.

My Psychedelic Love Story premieres on Showtime on Sunday, November 29.

My Psychedelic Love Story (2020) Official Trailer | SHOWTIME Documentary Film www.youtube.com

This article was originally published by Filter, a magazine covering drug use, drug policy and human rights. Follow Filter on Facebook or Twitter.

New report finds that reducing overpopulation in jails doesn't hurt public safety ​

COVID-19 has transformed the landscape of American life, from the mundane, like how people work and socialize, to the traumatic, such as how they are locked up. The airborne and contagious nature of the virus has made claustrophobic, unsanitary places like our jails petri dishes for its spread. Even in areas of the country where the political needle has not moved on mass incarceration and the drug war since the 1990s, local sheriffs, mayors and county commissions have felt enough pressure to take action to alleviate the jail overpopulation crisis that meaningful releases of pretrial detainees have sometimes occurred.

There are real questions about what many more conservative jurisdictions will do in terms of jail policy after the pandemic comes to an end. However, even before COVID-19, many other jurisdictions had already been experimenting with letting more people facing criminal charges await their trial dates from the safety of their own homes.

The Prison Policy Initiative, a national-facing nonprofit based in Easthampton, Massachusetts, just released a groundbreaking new report studying the impacts of these pretrial justice reforms on four states, as well as nine populous counties and cities. Analyzing public safety data from before and after the implementation of local reforms, the report comes to the conclusion that releasing people from confinement pretrial does not harm public safety.

In 2017, the New Jersey legislature virtually eliminated cash bail in favor of a risk-assessment approach to pretrial release. By 2019, the statewide jail population statewide had decreased by 45 percent. Contrary to law enforcement messaging that both crime and victimization would increase, crime data showed a 16 percent drop from 2016 to 2018, as well as negligible change in the number of people arrested while on pretrial release.

The stories are similar for the other states studied. Kentucky saw a decline in new arrests for people released pending trial, while New Mexico saw declines in both crime rates and rearrest rates. In New York, there was a sharp decrease in the number of people incarcerated pretrial after reforms were enacted, but, thanks to the state's district attorneys stoking fears of a hypothetical crime wave and particularly heinous crimes, it only took a few months for the legislature to reverse course.

On the local level, Washington, DC has represented a success story on pretrial justice changes for years. The city largely eschewed cash bail in the 1990s, and today, less than 10 percent of people released following arrest are released contingent on a financial bond. In San Francisco, where progressive District Attorney Chesa Boudin took office at the beginning of the year, prosecutors are no longer seeking cash bail; just like in DC, only about 10 percent of people awaiting trial at home are arrested again during that period. In neighboring Santa Clara County, California, which includes San Jose, the results of a similar policy were even more impressive, with 99 percent of impacted people not getting rearrested.

If these data points seem to some to contradict common sense, it is because television shows about crime and justice, together wth other media depictions, focus on dramatic, terrible crimes like rape and murder. In fact, the lion's share of any local or state prosecutor office's caseload consists of minor, even petty, crimes.

Laura Conover, the newly-elected reformist county attorney in Pima County (Tucson), Arizona, importantly made crucial but little-known statistics about the county and state justice system front and center in her campaign. Linking to data from Pima County Superior Court and the Arizona Department of Corrections, Conover explained how "more people were charged with a felony drug offense as the most serious charge than with any other kind of felony offense, which has been true for fourteen of the last seventeen years." In addition, she noted how Pima County "sends more people to prison and jail and places more people on probation for drug possession as the most serious charge than for any other type of crime." This holds true for Arizona as a whole, as well as many other places across the nation.

None of this stops the fear-mongering about pretrial reform, especially from law-and-order conservatives and last generation's law enforcement officials. What motivates these reactions?

Aside from the desire to appear "tough on crime," some of these figures may be looking out for their personal lives. For prosecutors, making the case to a judge that someone is an imminent menace to the community takes more effort than simply asking to hold someone on a routine bail amount on the basis of the underlying crime charged.

In New Mexico, Albuquerque DA Raul Torrez's prosecutors often refused to give this extra information, even after voters said yes to a 2016 ballot initiative that required just this. Across the nation in Brooklyn, assistant prosecutors quit in droves after a set of criminal justice reforms (including bail reform) allegedly increased the amount of hours they had to spend at work.

This article was originally published by Filter, a magazine covering drug use, drug policy and human rights. Follow Filter on Facebook or Twitter.

Here are 4 easy ways for a new top prosecutor to make real change

Activists like the Dream Defenders did not expect Harold Pryor to win the Broward County (Fort Lauderdale), Florida State Attorney race, nor was he their pick. But win he did in the August 17 Democratic primary, leaving him a nailed-on favorite to take the job.

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Kamala Harris's career is built on a troubling Faustian bargain

When Kamala Harris was still San Francisco’s district attorney in 2010, she delivered a talk at the Commonwealth Club where she brought up a common activist slogan—”Schools Not Jails”—and mocked it as naive pandering.

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What’s behind the extreme charges for 3 nonviolent protesters in Salt Lake City?

Salt Lake City is a world apart from the rest of Utah culturally and politically, and its choice of district attorney shows that—at least on a surface level. Sim Gill, first elected to the seat in 2010, has made some modest criminal justice reform moves, like expressing support for reducing the number of people on probation or court supervision. As a first-generation immigrant from India, he’s one of the few Asian-American elected prosecutors nationwide. Faced with a conservative Republican challenger in 2018, Gill emerged victorious by 14 percentage points.

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New Orleans’ nightmare prosecutor announces plans to step down in surprising statement

In prosecutor accountability circles, the name Leon Cannizzaro carries almost mystical significance. Cannizzaro, the district attorney of Orleans Parish (New Orleans) for the last 12 years, led the biggest prosecutors’ office in the most incarcerated state in the most incarcerated country on the planet, while filing bogus charges against ideological opponents in the public defender’s office. He routinely tricked reluctant, fearful witnesses and even victims to talk to his office through the use of “fake subpoenas” that threatened jail for noncompliance. And that is just the tip of the iceberg.

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