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At its Fall Meeting in Tampa, NACDL’s Board of Directors took several
actions (see page 12 in this issue) that underscore the urgent
challenges confronting President-Elect Barack Obama. The global economic
meltdown and two wars will top an inbox unlike anything confronting a
new president in at least a generation. But, make no mistake, criminal
justice issues cry out for presidential action. The new president will
ignore them at his peril. They implicate paramount constitutional
imperatives to which the president will swear allegiance when he takes
the oath of office on January 20th — ensuring justice, providing for the
common defense, and securing the blessings of liberty.
Topping the list are myriad injustices that have embarrassed our nation
and pervasively undermined the country’s moral standing in the world.
These include extraordinary rendition, international kidnapping,
detention without charge, torture, and an adjudicative process that
denigrates the Constitution and Bill of Rights. These injustices may be
summed up by reference to one word that has become an icon of
governmental excess: Guantánamo.
NACDL’s Board of Directors has called for the immediate closure of the
camps and the repeal of the Military Commissions Act. The detainees at
Guantánamo, who even the government concedes are not enemy combatants,
including the Uighurs whose case is now on appeal to the District of
Columbia Circuit, should be set free at once. Those individuals who can
be shown to have violated the laws of war as unprivileged belligerents
should be prosecuted under the Uniform Code of Military Justice,
consistent with the Geneva Conventions. And those captured and detained
in accordance with international law, and against whom there is
sufficient lawfully obtained evidence of criminality, should be tried in
Article III courts.
To restore America’s standing in the world, President-Elect Obama should
close the detention camps at Guantánamo within hours of taking the oath
of office. Nothing would do more to begin the process of international
healing and restore the United States to the position of moral authority
that it held in the hours immediately after the calamity of 9/11.
NACDL’s Board also endorsed the Justice Integrity Act, proposed
legislation to address racial and ethnic disparities in the federal
justice system by mandating the creation of pilot programs to evaluate
racial and ethnic fairness in the practices of U.S. Attorney’s Offices.
There is reason to believe that congressional leaders are intent on
moving this legislation with dispatch. The new president has compelling
reasons to support the legislation. Indeed, the time has come for the
government to acknowledge, once and for all, the role of racial
disparity in the U.S. criminal justice system.
For too long, the public has tolerated policies that disproportionately
and unjustifiably disadvantage minorities. Gross imbalance in
incarceration rates, disparate application of capital punishment, and
continued reliance upon racial and ethnic profiling can no longer be
tolerated. Abundant evidence that the juvenile justice system deals more
harshly with minorities, and emergent evidence that diversion programs
are more generally available to more affluent and less diverse
populations, cannot be ignored.
The painful truth is that the last vestiges of racial and ethnic
inequality in American society remain prevalent in the criminal justice
system. Understandable jubilation at the election of the nation’s first
African American president cannot obscure this reality. The new
president must display the courage and vision to acknowledge these
truths. Indeed, it is likely that passions and expectations among
minority communities will spur the new administration and the new
Congress to bold action.
Immigration enforcement policy is a third area in which NACDL seeks
urgent reform. Continuing the work of the Operation Streamline Task
Force, headed by Cynthia Hujar Orr, NACDL’s newly installed
president-elect, the Board has called for broad action to stop the
misuse of our criminal justice system as a substitute for rational and
humane immigration policies. Mass arrests, resulting in prefabricated
assembly-line processing that denies fundamental constitutional rights,
are an embarrassing stain on this nation of immigrants.
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Having utterly failed to deliver immigration reform, despite President
Bush’s vow to provide a path to citizenship for the 20 million
hard-working immigrants, the current administration has reversed course
and resorted to mass prosecution and deportation in a craven act of
betrayal. These policies are destroying communities, spreading a tidal
wave of fear, and stoking the incendiary embers of xenophobia. (See page
14.) In a breathtaking display of cowardice, rather than confront the
root causes of illegal immigration, once again the political
establishment turns to the criminal justice system for a quick fix.
But history has shown that criminal prosecution is the least effective
means of shaping social policy. It plays to anger and satiates the
thirst for vengeance, but fixes nothing. It destroys lives, snuffs out
hope, and demeans our national character. A nation cannot prosecute its
way out of a socio-economic problem that is driven by the irresistible
allure of the American dream. Let us hope that Barack Obama can look at
this problem with fresh eyes. If he does not, it would be a tragedy if
we turn our nation of immigrants into a nation of criminals.
Beyond these three issues, there is a long menu of criminal justice
issues that must be addressed in the coming years: overcriminalization,
overfederalization, sentencing reform, innocence initiatives, grand jury
reform, and indigent defense funding are just a few examples. But if
the new president acts boldly on Guantánamo, racial inequity, and
immigration enforcement policy, he can set a new tone — one that
restores justice to the American criminal justice system. Holding high
the torch of justice is the most effective tool ever conceived to
safeguard national security and preserve liberty.
