Attorney General Merrick Garland a Disheartening Prospect

January 19, 2021

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.

Garland abandoned his lucrative career in the private sector to become a rookie federal prosecutor.

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.

Notably, Garland never wrote an opinion vindicating a defendant’s constitutional rights.

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.


 

Photograph of Merrick Garland (second from left) in 2016 by Senate Democrats via Wikimedia Commons/Creative Commons 2.0

Rory Fleming

Rory is a media relations associate at the Law Enforcement Action Partnership; his articles reflect his own views, and not necessarily those of his employer. Previously, he ran Foglight Strategies, a campaign research services firm for forward-thinking prosecutors, and worked for the Harvard Law School Fair Punishment Project and the National Network for Safe Communications at the John Jay College of Criminal Justice. Rory is also a licensed attorney. He lives in Philadelphia.

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