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Blog Post | April 22, 2021

Merrick Garland: A Potential Wolf in Sheep’s Clothing for Criminal Justice Advocates

Criminal JusticeDepartment of Justice
Merrick Garland: A Potential Wolf in Sheep’s Clothing for Criminal Justice Advocates

Last May, as the country first erupted into protests over George Floyd’s murder at the hands of Minneapolis police officer Derek Chauvin, Biden promised that he would deliver “real police reform” if elected president. The country’s eyes were on Minnesota again last week after a police officer in a Minneapolis suburb shot and killed Daunte Wright, sparking a new wave of protests. This time, Biden need no longer speak in hypotheticals; he is President. Will his administration deliver? 

The answer to that question largely rests with the Justice Department which can take important steps to tackle police impunity and power. But Biden’s pick to lead that department, Merrick Garland, has a weak record on these issues. Even worse, he has already taken steps as Attorney General that run counter to necessary reforms. Without delay, Merrick Garland must demonstrate his commitment to reform with concrete action. 

It is no secret that Biden’s own, long record on crime and policing is poor. But, even as his disavowal of those contributions to mass incarceration and growing police power remains incomplete, he has demonstrated a real commitment to dismantling the system he helped build with concrete proposals for reform. Biden ran on promises of criminal justice reform via both executive and legislative channels on the campaign trail and though not an exhaustive list, said reforms include redirecting drug-use offenses to rehabilitation, restoring Obama-era DOJ investigations into systemic police misconduct, termination of capital punishment, cash bails, and inhumane prison conditions, closing the school-to-prison pipeline, a $20 billion preventative plan meant to incentivize local authorities to discard of mandatory minimums and factors leading to incarceration of that nature, as well as increased financial fraud and white-collar crime enforcement

Many, although not all, of these initiatives will run through the Justice Department. Their success will depend, in no small part, on Garland’s commitment to seeing them through.  Unfortunately, neither Garland’s past record, nor some of his more recent actions, inspire confidence in the strength of that commitment.

Garland, like Biden, was an enabler of tough-on-crime policies which stripped an array of civil liberties and increased police power. In each of his roles — as one of the former top three key federal prosecutors handling drug-trafficking charges, a Deputy Assistant Attorney General in the DOJ Criminal Division at the height of the Clinton administration’s War on Crime, a judge ruling on diverse criminal cases with a pro-government and pro-establishment tendency — Garland helped build up this dangerous order. In at least 10 criminal cases before the DC Circuit, Garland dissented from the majority which favored overturning defendants’ convictions (this is all the more notable for the rarity of dissents). Garland has habitually and continues to 1) neglect to overturn criminal convictions, 2) feel inclined to counter defendants in legally vague circumstances, and, most alarmingly, 3) be excessively reluctant in doubting law enforcement’s spontaneous ‘risk-evaluation’ decisions in the field, their militarized ‘de-escalation’ tactics to subdue potential threats, nor any of their retrospective statements. 

It doesn’t come as a surprise then that a Congressional Research Service analysis points to Garland’s priorities lying first and foremost in the protection of law enforcement’s safety — a commitment that has led him to routinely sacrifice our Fourth Amendment liberties to vindicate officers’ frequently racially-motivated search and seizure practices. Garland has nearly always granted officers and prosecutors alike the benefit of the doubt, an unparalleled judicial advantage. In the 2003 United States v. Brown case, which raised questions pertaining to law enforcement’s unbridled power to search vehicles without a warrant, Garland predictably ruled in favor of the government and inferred, based on unsubstantiated claims, that the police must have had reasonable grounds for their actions. Garland has also proclaimed, “appellate judges do not second-guess a street officer’s assessment about the order in which he should secure potential threats.” 

In 2016, this “center-right” record on criminal justice matters was supposed to make Garland palatable to conservative Senators — we all saw how that worked out. But if Garland’s past stances already seemed out of step with the Democratic party in 2016, they seem miles off base today. 

The surge of impassioned Black Lives Matter protests against police violence last summer does not appear to have shaken these core commitments. His Justice Department has already taken steps to reinforce police power with its position in the Supreme Court case Caniglia v. Strom. The case concerns a 2015 encounter between Mr. Caniglia, the plaintiff, and Rhode Island police officers. In the course of escorting Mrs. Caniglia to her home at her request, officers determined that Mr. Caniglia was a threat to himself and others and asked that he go to a psychiatric hospital for evaluation. The plaintiff complied, at which point officers confiscated his weapons and later refused to return them. 

In its brief, the DOJ endorsed the officers’ expansive interpretation of the Fourth Amendment, which reasons that “community caretaking” obligations are valid in lieu of a warrant or suspicion of criminal activity to break into one’s home. The abstractness and perilously wide scope of “community caretaking” problematizes what could appear, at surface-level, to be a well-intentioned petition on behalf of law enforcement to safeguard the wellbeing of communities. However, let’s not fool ourselves; practically, this legal re-interpretation translates into a considerable growth in the prerogative of police. This interpretation is vulnerable to officers perverting a distorted understanding of the Fourth Amendment to disproportionately target Black & Brown bodies, invade the privacy and safety of their homes, and commit atrocities in a similar fashion to that of the tragic & unjustifiable murder of Breonna Taylor. 

Additionally and disturbingly, the Justice Department’s brief also reiterated its support for qualified immunity, a doctrine that enables police impunity. While Garland had not yet been confirmed as Attorney General when the Department filed its brief, he has done nothing to disavow that position since assuming leadership of the DOJ. Indeed, he has thus far retained Acting Solicitor General Elizabeth Prelogar, whose office made these arguments.

Biden has vowed to break with the legal and conceptual rationale that undergirded the 1994 Violent Crime Control and Law Enforcement Act and other pillars of the War on Crime era. Without buy-in from his Attorney General and the department he leads, however, Biden’s will be another empty promise. Thus far, Garland’s Justice Department’s steps to uphold, rather than challenge, police impunity is nothing less than terrifying in a country that prides itself on its militarized police force. He must reverse course and begin energetically implementing Biden’s reform agenda without delay. There’s no time to waste.

Header image:  “Attorney General Confirmation Hearing, Day 1“, C-SPAN.

Criminal JusticeDepartment of Justice

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