The views expressed in this blog are not necessarily those of TCP, its committees, or boards. 

In January 2009, I took the Amtrak from Philadelphia to Washington D.C. to begin my “semester abroad.” As an eager college student who could barely tie a tie, I was excited to start my internship with The Constitution Project (TCP). As part of my program, I was supposed to intern 3 days week and take classes over the remaining 2 days. But early in the semester I decided to drop a class so that I could spend more time in the office. And I am glad that I did – almost five years later, my time at TCP remains one of the best work experiences I have ever had.... Read More

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Momentum toward closing the Guantanamo detention facility continues to build. Last night, in a vote of 84-15, the Senate passed the annual defense authorization bill, which for the first time includes provisions intended to facilitate, rather than obstruct, that goal.

The vote culminates a critical seven month stretch that saw the President publicly, and repeatedly, recommit to closing Guantanamo; the appointment of special envoys at the State and Defense Departments charged with that task; and the initiation of long-overdue Periodic Review Boards that have begun the process of deciding whether detainees the Obama administration has slated for long-term detention without trial might in fact not pose a threat to U.S. security, and so should be transferred out. These are significant steps toward closure.... Read More

An earlier blog post detailed the growing chorus of individuals and organizations from across the political spectrum urging the Senate Select Committee on Intelligence to declassify and release to the public its 6,000-plus page report on the CIA’s rendition, detention and interrogation program. The agency has argued repeatedly that the study contains “significant errors,” and is reportedly doing all it can to delay release.

Yesterday’s rare open hearing in the Committee, to consider the nomination of Caroline Krass to become CIA General Counsel, shed some important new light on the nature and legitimacy of disputes between the Committee and CIA over the SSCI report. To my mind, there were two highlights and related takeaways.... Read More

Exactly one year ago, through a bipartisan vote, the Senate Intelligence Committee adopted a 6,300 page study examining the CIA’s rendition, detention and interrogation program (SCCI Report). That was a critical step towards some measure of accountability for the torture and abuse that the United States inflicted on captives in the aftermath of 9/11. Today, 58 prominent military, national security, foreign policy, and religious leaders added their voices to an increasingly loud call for Committee members to declassify and release the SSCI report.

A product of more than three years of work, the SSCI report traces the history of the RDI program, examines CIA representations about the program’s effectiveness and operation (apparently finding that the agency misled DOJ), and provides details about the detention and treatment of all known CIA detainees. In late June, months after it was due, the CIA delivered its response to the study. Reports indicate that agency officials have since met with Committee staff – which they previously refused to do, despite multiple requests – to discuss the CIA’s objections and concerns. The presumptive next step would be for the Committee to vote on whether to send the report, or some portion thereof, for declassification.... Read More

Public officials respond to intractable problems in a couple of ways. One is to tackle them head on, learning from past experiences and bringing about what progress is possible. Another is to create a commission that studies them for a couple of years, replicates much of what has already been done and issues a report that is soon forgotten.

Providing lawyers for poor people accused of crimes has been an intractable problem ever since the U.S. Supreme Court held 50 years ago in Gideon v Wainwright that, in order to ensure fair trials and equal justice, the Constitution requires states to provide lawyers to those unable to afford one on their own. U.S. Attorney General Eric Holder Jr., has said that the representation of the poor is in a “state of crisis” and “unworthy” of our legal system.... Read More

The Death Penalty Information Center recently released a report showing that a majority of executions in the United States since 1976 have been carried out by just 2 percent of the nation’s 3100+ counties. Among the ten most punitive counties, seven are in Texas.

Missing in DPIC’s report is an explanation for why such a small number of counties imposes such a large percentage of the nation’s death sentences. Perhaps more heinous crimes occur there. Maybe residents are more retributive; they elect prosecutors who seek the death penalty more often and fill juries that are more willing to choose the death sentence over life in prison. After all, we live in a federal, not national, legal system. Different communities are allowed to express their will through varying sentences, and the U.S. Supreme Court has ruled that the death penalty does not offend the Constitution or Bill of Rights so long as it is limited to adults and is not applied discriminately on the basis of race.... Read More

On August 12, U.S. Attorney General Eric Holder announced a package of criminal justice reforms in a speech at the American Bar Association convention in San Francisco. In his much-praised remarks, Holder acknowledged that our criminal justice system is, “in too many respects broken.” Among the issues Holder raised in his speech were the unjust and costly impact of drug-related federal mandatory minimums and the crisis in indigent defense, particularly in the federal public defender program.

Holder introduced what the Department of Justice (DOJ) is calling the “Smart on Crime” initiative. In announcing the initiative, Holder expressed concern that some mandatory minimums result in unfairly long sentences that fail to increase public safety and are “ultimately counterproductive.” As a result, the DOJ will refrain from charging low-level, non-violent drug offender with offenses that carry mandatory minimums, reserving mandatory minimums “for serious, high-level, or violent drug traffickers.”... Read More

“That this speech and association for political purposes is the kind of activity to which the First Amendment ordinarily offers its strongest protection is elementary,” Justice Stephen Breyer wrote in his dissent in Holder v Humanitarian Law Project (2010). The “speech and association” to which he referred were those of peacebuilding groups seeking to teach designated terrorist groups how to pursue their aims through non-violent political channels instead of through violent means. The Court’s majority, however, disagreed: in the Humanitarian Law Project case, six of the justices joined in an opinion that held that this type of activity could be criminally prosecuted under the “material support” laws. Last month marked the third anniversary of the Court’s decision upholding this broad interpretation of the material support laws, and it is time for the administration to act to roll back the barriers to peacebuilding work that the decision created.

Peacebuilding organizations are a critical part of the tradition of “Track II diplomacy.” In a 2011 Foreign Policy article, Charles Homans described Track II diplomacy as “the brainchild of a handful of academics, free-thinking State Department bureaucrats, and public intellectuals in the 1970s,” which he says “grew out of the observation that private individuals, meeting unofficially, can find their way to common ground that official negotiators can't.” Because they are independent from government—and therefore from the many political factors that limit government officials—peacebuilders working all over the world are often uniquely positioned to engage with parties to end violent conflict. In recent years, however, peacebuilders have had to limit their work for fear of criminal prosecution. The source of their fears lies in the material support statute: in the eyes of the law, they might as well be giving guns to al Qaeda.... Read More

On July 19, the House Judiciary Committee’s bipartisan Task Force on Overcriminalization held its second hearing since its creation. The hearing, “Mens Rea: The Need for a Meaningful Intent Requirement in Federal Criminal Law,” featured testimony from John Baker, Jr., Visiting Professor at Georgetown Law School and Professor Emeritus at LSU Law School, and Norman Reimer, Executive Director of the National Association of Criminal Defense Lawyers. In his opening statement, Task Force Chairman Rep. Jim Sensenbrenner (R-Wis.) called the erosion of the men rea requirement in federal law “one of the most pressing problems facing this task force.”

The principle of mens rea means that to convict a defendant in a criminal trial, the government must show that she acted with a certain level of intent when she violated the law. In its 1952 opinion in Morissette v. United States, the Supreme Court affirmed the importance of the mens rea requirement. “The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion,” Justice Robert Jackson wrote. “It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.”... Read More

Earlier, we posted the first installment in a series focusing on the Supreme Court’s major criminal law decisions last term that relate directly to TCP’s work. Today, we continue with analysis of a pair of cases that, in the words of TCP’s President Virginia Sloan, “reaffirmed the importance of justice above legal niceties and procedural technicalities.”

Trevino v. Thaler

In Trevino v. Thaler, the Court considered whether to extend a Sixth Amendment ineffective assistance of counsel case from last term, Martinez v. Ryan, to a new context. In Martinez, the Court expanded the appellate rights of individuals claiming that their trial counsel was ineffective. The Court ruled that, in states where defendants are required to wait until after all direct appeals have been completed (called a “post-conviction proceeding”) before bringing a claim in state court that his or her trial counsel was ineffective, a defendant should also have access to federal courts to bring these claims, even if he or she has missed certain federal filing deadlines.... Read More

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