March 2, 2014
Guest: Judith Browne Dianis, Aisha Moodie-Mills, Ira Stoll, Anna Palmer,
Sarah Posner, William Taylor, Akhil Reed Amar, Shane Bauer, Timothy Lewis,
Peter Suderman, William Murphy, Piper Kerman
ARI MELBER, MSNBC HOST: This morning, my question, who decides how voting
will work in Ohio? Well, we may need to change the answer.
A Special Report on alternatives to prison. And a new book about what
really happened in the George Zimmerman trial.
But first, does religious freedom guarantee your right to be wrong?
Good morning to you. I am Ari Melber in for Melissa Harris-Perry.
And we begin with breaking news in Ukraine. The government in Kiev is
mobilizing troops calling up military reserves. This is all in response to
the growing presence of Russian personnel in Ukraine`s Crimea region.
Hundreds of gunman now surrounding Ukraine`s military base in Crimea
according to the AP and we`re seeing armored vehicles and mounted machine
guns. The gunmen are unidentified for the most part, but many of their
vehicles have Russian license plates. Their demand that Ukrainian troops
disarm. And the Russian parliament just yesterday unanimously approved
Vladimir Putin`s request for military intervention. The response in
Ukraine was swift and concerning. Its prime minister calling president
Putin`s actions a declaration of war against Ukraine.
Meanwhile, in Crimea, which is predominantly ethnically Russian,
demonstrators took to the street. They are celebrating the arrival of
Russian soldiers. In Kiev, however, thousands gathered today at
independence square to protests this Russian military action. It all
comes, of course, in the wake of President Obama`s Friday warning that a
Russian military intervention of any kind in Ukraine could constitute a
violation of territorial sovereignty and would carry significant
On Saturday, President Obama followed up on those public warnings with a
private call to Putin. There you see him in the White House photo. It was
unusually long. Aides described the 90-minute thorough discussion of the
crisis and the president`s insistence that Russia cannot legitimately
invade or control Ukraine.
Now, one immediate consequence, the administration is canceling, officially
canceling preparations for the G-8 economic summit in Russia later this
year. And this morning, secretary of state John Kerry just weighed in on
"Meet the Press."
(BEGIN VIDEO CLIP)
JOHN KERRY, SECRETARY OF STATE: President Putin is using force in a
completely inappropriate manner that will invite the opprobrium of the
world. He`s going to lose all of the glow that came out of the Olympics,
his $60 billion extravaganza. He is not going to have a Sochi G-8. He may
not even remain in the G-8.
(END VIDEO CLIP)
MELBER: We go directly to NBC`s Jim Maceda in Moscow.
Jim, what are we to make of president Putin`s actions here?
JIM MACEDA, NBC NEWS CORRESPONDENT: Hi, Air. Well so far, it`s playing
out very much along the old soviet playbook, isn`t it? You have Russia
asked to intervene in Crimea by Russian compatriots under threat. There
has been no evidence at all, all the need threat. But never mind that.
Putin then requested had got, as you say, the use of force that he needed
and now only 24 hours later, Russian troops are pretty much neutralized
Crimea without firing a shot. So he`s already attained his key short-term
goal, anyhow. And I think that`s reminding Kiev and reminding the west
that Vladimir Putin can`t be cut out of Ukraine`s future. And that he
truly is prepared to use his facility anywhere in Ukraine, if used to
defend his interests. And that doesn`t seem to worry him at all, this idea
of consequences. For him, not going or going to the G-8 or whoever comes
to the G-8 doesn`t seem to be a big issue. His larger goal, analysts tell
us, is to bring Ukraine into a kind of soviet economic union, something
that would rival the EU.
And OK, that doesn`t look very likely now that Kiev is going pro-west, but
they say Putin still has enough influence in Ukraine, just think of the
natural gas taps that he controls, that he could really seriously handicap
Kiev`s European ambitions.
Finally, in terms of what Putin is likely to do next, he seems reluctant to
send troops beyond Crimea at this point and into other parts of Ukraine,
but Ari, that could change at any time. He doesn`t seem ready, either, to
annex Ukraine or large parts of it or launch a major intervention either,
that would split Ukraine apart. The people we talk to here are telling us,
because that would only hurt Russia economically and hurt him as well,
probably politically. Back to you.
MELBER: NBC`s Jim Maceda, thank you very much.
Now, we go directly to Kristen Welker, NBC News White House correspondent.
Kristen, a 90-minute conversation there. The White House, explaining
President Obama`s pressure on Putin, and yet, when you look on the ground,
obviously, Putin making his own moves. What can you tell us today?
KRISTEN WELKER, NBC NEWS CORRESPONDENT: Well, it was a tense conversation,
there`s no doubt about that, with President Obama announcing that the U.S.
would be suspending its participation in those planning meetings for the G-
8 summit, as you mentioned, Ari. So the big question on this Sunday is
what can the United States actually do? What steps can it take to dissuade
Russia from intervening further in Ukraine?
The reality is their options are limited. I`ve been talking to foreign
policy advisers. Also, former members of the Obama administration, who
acknowledged that the options are limited. They include things like
sanctions, canceling meetings with Russia`s trade delegations, and
canceling Russia`s membership in the G-8. You heard Secretary John Kerry
signal that that is one of the options that`s under consideration. It
appears as though all of these options they`re considering, though, are
policy-based. In other words, they`re not considering military
You heard Secretary Kerry say that today on "Meet the Press," that that is
not what anyone wants, military intervention. And what`s interesting is
that even some of the more hawkish members of Congress aren`t calling for
Marco Rubio today on "Meet the Press," saying that he doesn`t think that
anyone`s advocating for military intervention. Senator John McCain, who
came out saying that the U.S. no needs to take a stronger stance when it
comes to Russia, also signaled that military option isn`t something the
U.S. should be considering right now.
So, it seems as though everyone`s on the same page about that. But
realistically, the options on the table for the U.S. are limited in scope.
You heard President Obama, though, say that there will be costs and a lot
of people, Republicans particularly, want him to enumerate what those costs
will be, specifically. I can tell you that as of right now, there are no
meetings that have been reported, that are scheduled here at the White
House, but there will undoubtedly be high-level talks throughout the day as
I they continue to monitor the situation -- Ari.
MELBER: Clearly a busy working Sunday at the White House.
Kristen Welker, thanks for your report.
MELBER: Joining us now from our bureau in Washington is the former U.S.
ambassador to Ukraine, William Taylor.
Ambassador, good morning to you. Let`s start with what kind of country we
are looking at. Walk us through the changing government they have had and
what they are dealing with on the ground. And then we`ll go out to the
AMB. WILLIAM TAYLOR, FORMER U.S. AMBASSADOR TO UKRAINE: So Ukraine`s new
government is getting its feet on the ground. Just last week, they were
able to establish themselves, Ratta (ph), the parliament, the designated an
interim president. They confirmed an interim prime minister and they took
steps towards elections in May. So they are a new government. They do the
legitimacy of the Ratta, the elected Ratta, but they`re facing enormous
problems, even before this attack on their sovereignty by the Russians.
The economic problems are enormous and they will have to deal with that
after they`ve dealt with this crisis with the Russians.
MELBER: When you were ambassador, what did you make of Crimea, its
position as an ethnically, somewhat different than the rest of the nation,
its ties to Russia, and what does it mean to us, as we look up on a map and
look at that region. What does it means to us from a U.S. perspective,
that Russia has what we might call now, an attempted foothold there?
TAYLOR: Russia has a foothold there. It`s clearly more than an attempted
foothold. They`re there. I spent a good amount of time in Crimea, while I
was in Ukraine. Indeed, I traveled around Ukraine on my 30th wedding
anniversary and had a very welcome time. It was not difficult at all. It
is, as you say, largely, not overwhelmingly, but largely Russian ethnic
I noticed to my chagrin that all of the street signs were in Russian, none
in Ukrainian and of course, none in any other language. So it is clearly a
Russian province of Ukraine. But it is a province of Ukraine. It has been
MELBER: And does Putin care about anything that we`re doing or threatening
at this juncture?
TAYLOR: I don`t think he cares about anything we`re threatening so far.
However, he is clearly acting, and Russia more broadly is acting as an
outlaw state. We ought to deal with him as -- treat him as an outlaw
state. And that means treat him like other outlaw states that we have
sanctioned in the past. I`m thinking of South Africa.
MELBER: Let me ask you, to make sure I understand that as a final
question. Are you then saying that you don`t think the Obama
administration`s moves up to this point have gone far enough?
TAYLOR: I think there`s more to do. I think that they have talked about
the kind of things that they are doing in terms of G-8 and going down to G-
7. But I think there are specific sanctions on individuals that will get
their attention, but more broadly, treating them as an outlaw state, as we
did with South Africa and Iran.
MELBER: Wow, strong words and I appreciate your perspective and expertise,
Ambassador William Taylor in Washington, D.C. Thank you very much.
And up next, we are going to look at why the battle for equality in Arizona
isn`t staying in Arizona. A new push to turn that defensive victory into
offense and a deeper look at the religious underpinnings of our ongoing
MELBER: Welcome back.
On Wednesday, celebrations by some, sighs of relief by others, as Arizona
governor Jan Brewer vetoed SB-1062, the bill, of course, that had been
roundly condemned by LGBT advocacy group, local and national businesses,
Democrats, Republicans, even some of the state senators, I`m sure you heard
about this, some of the state senators who had voted for the bill just days
Now, Arizona`s SB-10622, what would it have done? Well, allowed are
private business owners to cite their religious beliefs in refusing service
to gay and lesbian customers. The bill and bills like it would have given
more protection to private businesses like wedding photographers if they
were sued sister discrimination for refusing to work for those gay
In other words, it would have made it easier for businesses to discriminate
against LGBT people. It was pushed by groups who fear that the religious
liberty is under attack by the version in acceptance of same-sex
relationships. But ultimately Governor Brewer pushed back in her veto in
she said there were no instances in Arizona of religious freedom taking a
backseat to LGBT right.
(BEGIN VIDEO CLIP)
GOV. JAN BREWER (R), ARIZONA: Senate Bill 1062 does not address a specific
or present concern related to religious liberty in Arizona. I have not
heard of one example in Arizona where business owners` religious liberty
has been violated.
(END VIDEO CLIP)
MELBER: The thing is, Arizona is not an outlier here anymore. At least 12
other states are looking at similar bills. Oregon could even see something
on its ballot this year. Several of these efforts have run into
roadblocks, sure, or even political abandonment following the outcry in
Arizona. But it is, we think, all part of a larger strategy on the right,
invoking religion as a trump card in venues where there was actually a
consensus that other, shall we say, nonreligious values rule. I`m thinking
about like profits in the corporate board room or science in the public
And where Arizona`s effort failed spectacularly, a more careful
interpretation and version of this argument is getting a serious hearing,
including in a challenge to Obamacare`s contraception rules. That`s
pending before the Supreme Court.
Now, some call that effort to place employer`s religious choices above
federal law and above their employee`s health choices. Some call it a
conscience creep. And even as LGBT organizers celebrate this defense of
victory in Arizona, it`s still legal, under Arizona law, to fire someone
for being gay. What`s more? It`s legal under federal law to fire someone
for being gay. And although the Obama administration pushed a bill to
change that, it passed the Senate last year, Speaker Boehner opposes it.
And or some version of this bill has been introduced in Congress for the
past 40 years without success.
We are going to unpack all of this at the table this morning we have Akhil
Reed Amar, professor of law and political science at Yale University and a
constitutional heavyweight. Aisha Moodie-Mills, senior fellow at the
center for American Progress and co-host (INAUDIBLE) which appears now on
thegrio.com, "Politico" senior Washington correspondent Anna Palmer, and
Ira Stoll, a former managing editor of the very conservative "New York Sun"
and a current editor at thefutureofcapitalism.com. He`s also the author of
"JFK: Conservative," a book we have battled over previously in a very
conservative tone previously.
I want to welcome all of you to the table. I`m very excited about this
discussion. I want to start with you, professor. When you look at the
precedence here, the Supreme Court has already looked at these kinds of
rules, Romer V. Evans, the famous Colorado case that wasn`t even close.
Would these kinds of rules in Arizona, in your view, even be constitutional
AKHIL REED AMAR, LAW PROFESSOR, YALE UNIVERSITY: Yes, I think they would
be constitutionally permissible, but not constitutionally required. So,
we, the people have the choice. So, let`s just step back.
The constitution itself in the first amendment limits the federal
government`s ability to intrude on religious freedom. Remember the first
words of the first amendment, Congress shall make no law abridging free
exercise of religion. That idea of religious freedom against the federal
government in the first amendment was expanded after the civil war and the
14th amendment came along, because states had misbehaved the civil war, and
the 14th amendment says not state shall make or enforce any law that shall
abridge fundamental freedoms and privileges like free speech, free press,
free exercise of religion. So, the constitution gives us rights against
the government, but the Supreme Court has construed those rights fairly
Basically, a law, state or federal, targeting a religious practice as such,
that was free exercise. So imagine, for example, Arizona says, Catholics
can`t use wine in sacrament. That would violate the first amendment,
because it would be targeting the Catholic Church, a religious practice.
But the Supreme Court has said it doesn`t violate the constitution if you
have a general law designed to serve --
MELBER: A rule of --
AMAR: Like prohibition. All wine and the incidental effect of intruding
MELBER: And you have put your finger on something that a lot of folks said
who does support these kinds of rules which is they don`t specifically
target people. The court has said if there`s animus towards gays, that is,
not a proper reason. But let`s be clear. A lot of people in the LGBT
community, I used to felt this, did target them.
AISHA MOODIE-MILLS, SENIOR FELLOW, CENTER FOR AMERICAN PROGRESS: Yes. It
absolutely did target them. I mean, this is a last-ditch effort
essentially by a very kind of radical religious conservative right, that is
trying to do everything that they can in their power not to comply with
laws that are moving forward around the country that are equalizing access
to the same benefits that everybody else enjoys for LGBT people and they
say as much. They say, we`re actually creating these things, because we`re
trying not to comply with laws that we know are coming down the pike. And
that is the problem here. This isn`t about -- this all just really -- this
freedom thing, is really about people saying, I don`t want to comply with
MELBER: Ira, do you feel that there is a problem here, that religion
people aren`t being respected enough, or some of their values and faith is
being driven out of public life?
IRA STOLL, AUTHOR, JFK CONSERVATIVE: Well, I think there`s a broader
culture war that is targeted at religion and religious people in some ways.
You see it in the Ten Commandments being taken out of courthouses. And you
see it in this effort to depict these long-standing beliefs of major
religions, for thousands of years, as all of a sudden bigoted. And the
religious groups are picking up on that. This discrimination/bigot
language and have been very successful for gay groups, and they`re turning
it around and saying, well, no, you`re discriminating against us. We`re
the discriminated-against ones, and you`re anti-religious bigots. So --
and let`s pass a law to save it, the same way that the gay community has
been going for these ballot resolutions and laws.
AMAR: So, I want to maybe bring down the conversation, sort of
temperature, just a bit. We`ve been talking a little bit about the
religious right, but let`s remember, there`s an important religious left in
MELBER: I`m in it.
AMAR: It gives us the -- the abolitionists give us the 14th amendment, and
their first position is really a religious one, that slavery is sin.
Martin Luther King, if you had asked him to describe himself, he wouldn`t
have said civil rights leader, he would have said, I`m a preacher of the
gospel. Everything comes out. The Reverend Al Sharpton, to just to pick
someone from this network.
So, you know, I think it`s a mistake to think of the crusade for protecting
religion, even above and beyond what the constitution requires, as merely
the province of one party or the other or one ideology.
ANNA PALMER, SENIOR WASHINGTON CORRESPONDENT, POLITICO: But what`s really
fascinating is if you look back into the Bush administration, when they
were trying to go in 2004, they were using ballot initiatives for pro, you
know, anti-gay marriage in Ohio to win those states. And so, you`ve seen
such a shift in terms of where this, this dialogue is happening right now.
MOODIE-MILLS: And I want to pick up on something --
MELBER: So let me say this. I want to go to you first when we come back.
Because part of what we want to continue, and I think Ira raises a big
point her that there are born-again Christians and others who feel this
hits home because they feel disrespected. They say they feel persecuted.
Up next, we want to look at that, how our politics, I should say, are
defined by a fear of a secular planet. That`s religious freedom and public
enemy, that`s up next.
MELBER: Supporters of the religious liberty bills that we`ve been talking
about often say their faith is under attack -- disrespected in the culture,
dismissed in the schools, and squeezed out of government. It`s a fear of a
secular planet, or at least an atheist government. One sponsor of the
Arizona bill that we`ve been covering said, for example, that the bill was
aimed at preventing the rising attempt at discriminating against religious
folks because they are sincere and serious about the free exercises of
their religious faith.
Brian Walsh, head of the American religious freedom program says the threat
to religious freedom is really being driven by government officials and
policy focused on compelling people to violate their conscience. And a
sponsor for a similar bill in Georgia, state senator Josh -- I should say,
Josh McKoon said, quote "the only folks who have spoken against this
legislation are people. They want the government to be a tool to promote
militant atheism. It was something that Governor Mitt Romney also warned
about in the 2012 campaign when the religious flight over the ACA`s
contraception mandate was heating up.
(BEGIN VIDEO CLIP)
MITT ROMNEY (R), FORMER MASSACHUSETTS GOVERNOR: I think there is, in this
country, a war on religion. I think there is a desire to establish a
religion in America known as secularism. As I think it was Mike Huckabee
said, we`re now all Catholics. Those of us who are people of faith,
recognize this is attack on one religion is an attack on all religion. And
it`s one more people that we need to get rid of Obamacare. It`s also one
more reason why we need to get rid of Obama.
(END VIDEO CLIP)
MELBER: Joining us now from Washington to explain this fear of a secular
government is Sarah Posner, an investigative journalist, contributing
writer for "Religion Dispatcher." You`ve been covering this, listening to
our conversation. What is your take?
SARAH POSNER, CONTRIBUTING WRITER, RELIGIOUS DISPATCHES: Well, I think
what`s important to remember here is that the organizations and activists
who are pushing for these religious freedom laws believe that secular
government is illegitimate. They think that the separation of church and
state is what they call a myth that was created by activist judges. They
believe that America was founded as a Christian nation and its laws and
policies should be governed by biblical principles.
So, to the extent that same-sex marriage or other types of legal equality
for LGBT people come into what they perceive as conflict with their
religion, they view that as secular government, imposing its values in
contravention of God`s purposes for America, basically. I mean, that`s not
an exaggeration to say that that`s what their belief system is, because
they`re pretty open about that being their world view.
MELBER: Yes. And I`m going to bring in our table here. Aisha was
speaking about some of this in the last segment.
MOODIE-MILLS: Yes. You know, the question becomes here, who are we
talking about religious liberty for, right? Is this about religious
freedom for some people or religious freedom for everybody? And I think
that that`s really the core of the question because in this, the folks who
are really against this are a very specific sect of Christianity. And I
think that they debase religion, generally, by not taking into account that
there are a lot of people of faith who believe in LGBT equality. So to
pretend that religious freedom means that, well, we just don`t care about
LGBT people. That`s actually assuming that there`s a very small group of
people that have a religious faith, that that faith should be imposed on
the rest of us. And that`s not the case. And I think it`s important that
we talk about that as well. Are
MELBER: Well, yes. And Anna, that, when you report on the ACA and these
debates, that is the question, right? Whether this is something that is
asking someone else to change their beliefs or letting someone, for
example, when you`re a patient, letting you ultimately have the full range
of choices for your beliefs.
PALMER: Absolutely. I think what you`re seeing is, the catholic bishops
and other groups that are very powerful in Washington are able to use that
base to really push the Obama administration and others to try and make
changes, because they are saying, you know, we are active in this debate.
We are the people who are going to turn out votes for you, ultimately, and
where those laws are going to be made.
MELBER: Sarah, I want to go back to you. Your thoughts?
POSNER: Well, I think it`s important to remember that religious groups
that hold these beliefs have many statutory and regulatory exemptions under
the law that demonstrate that they are -- these laws are not being imposed
on them, that they are actually been exempted from these laws. For
example, under the affordable care act, churches and other houses of
worship are exempt from the contraception coverage. They`re just battling
in court so that corporations who hold these religious beliefs can be
exempt from it too. Same-sex marriage laws, similarly, houses of worship
and pastors are exempt from them, under -- in states like Maryland and New
York, where same-sex marriage became legal by the legislator, there were
exemptions for houses of worship, so a same-sex couples could not go to a
priest and force them, under the law, to marry them. So --
MELBER: Yes, I think you`re making such an important point there. And it
is different than some of the older battles. I want to put up on the
screen, the famous ten commandments battle in Texas, where the question was
whether you could have the ten commandments up in front of government
buildings, Greg Abbott, who is of course now running for governor, fought
for hard for that, all the way from the Supreme Court, Ira. He won. But
that strikes me as somewhat different, saying, can the Ten Commandments be
displayed as a general matter versus whether people have their own
religious choices to make in the hospital.
STOLL: Well, there are two clauses in that first amendment religious
freedom. There`s a no establishment of religion clause and then there`s a
free exercise clause. And so, what people say is when you`re putting up
the Ten Commandments, that is somehow an establishment, a government
establishment of religion. Whereas what we`re talking about here, more as
the free exercise part of it, and letting people be free to live according
to their religious beliefs.
The bigger point, I think, applies is that a small government, a modest
government, gives all Americans, whatever their religious beliefs, or no
religious beliefs, the ability to make their own choices on these things.
Whereas if you impose something like Obamacare that tells everybody you
have to have certain things in your health insurance plan, it prevents
employers and employees from making their own choices about that.
MELBER: Well, and I want -- I see some shaking heads, we`re going to go
And Sarah Posner, I want to thank you for piping in from Washington. I
know you`ve been reporting on this a lot. People should check that out.
POSNER: Thanks, Ari.
MELBER: Thank you.
And up next, the professor is going to explain to us why he says he`s a
MELBER: Welcome back. We`ve been talking about religious liberty and
discrimination and Professor Amar was saying you, sir, you were saying you
are, despite being what some would call on the left, you are a
AMAR: I am a discriminator. We don`t want government in the business of
making certain discriminations on grounds and race or sex or religion, but
part of the private freedom is the freedom to choose, to make distinctions,
to make discriminations. So before I got married, I actually only dated
women, that`s sex discrimination and presumably heterosexual. I mean,
that`s actually sexual orientation discrimination.
In my church, actually, a Presbyterian church, in order to be an employee,
a high employee of the church, a pastor, you have to be a member of that
church, that`s religious discrimination. In the Catholic Church, which I
hold in very high regard, and I hold the Pope in very high regard, but
let`s remember, he was only men were eligible to be if that job position,
or to be a priest.
So I say we want to have space for private individuals to exercise
religious and other freedom and make choices. We want to have freedom for
houses of worship and religions within themselves, but that`s a little
different, and this is what the debate is about, whether that`s true for
every business, every big business, every corporation because corporations,
especially for-profit corporations, don`t quite have souls.
And so we might want to carve out certain exemptions, certain enclaves of
freedom, for houses of worship, for churches, for people in their private
lives, but not necessarily for big business corporations. That`s part of
what the debate is about.
MOODIE-MILLS: I`m glad the professor brings up the distinction between our
private and public lives. Because I feel like the discourse spends way too
much time talking about all the exemptions we need to carve out for people
in their private lives.
But this is what`s at debate here and this is what the Supreme Court is
going to need to figure out. What happens went we talk about private
accommodations? These conversations are about whether businesses can
discriminate when they are providing a public service. And the law says
that they cannot. So it would be the same thing as if, you know, if a
Jewish deli doesn`t have pork on the menu, then, certainly, no one can walk
in and demand pork and say, well, if you`re not giving me pork, you`re
discriminating against me. But if they do offer pork, they can`t say,
well, we`ll sell pork to the black people, but we won`t sell it to the
Jewish people even. So the conversation here is really about complying
with the law. And people should not be able to skirt and get away with
complying with public law in public life.
STOLL: I would just argue that those laws should be modest, because not
every business is sitting around, looking for a way to discriminate.
Really, what they`re looking to do is make money. So corporate America has
actually been leading the way on domestic partners, on gay, friendly
workplaces, because they want to attract those qualified employees. They
don`t want to rule out potentially qualified employees or customers. So,
rather than the government jumping in and forcing them to do stuff they
would do anyway, because it`s in their best interests, I think government
should be a little more modest.
PALMER: We certainly saw that in Arizona. You had fortune 500 companies,
delta, others say, this law should not go forward. So they did it of their
own volition. But at the same time, you know, when you`re talking about
this, it`s really an outlier. Not have many of these kind of echoing your
point here, are saying, we want these laws to go forward. We don`t want to
have to provide the medical benefits that the law now states.
AMAR: And today`s business leaders, I think, have been quite progressive
on some of this, because of the great success of anti-discrimination laws
passed 50 years ago this year. The civil rights act of 1964 that prohibits
big employers. There`s a carved out for small employers in the spirit of
kind of privacy.
MOODIE-MILLS: But the problem is that LGBT people are not included that --
AMAR: But 50 years ago, this law that says, you can`t discriminate on
grounds of race or sex, big employers, and that`s changed the culture of --
MELBER: Right, and that`s why we started this, to the point that Aisha
raised. That`s why we started this conversation with Etna (ph) because the
`64 civil rights laws have not evolved along with some of the groups we`re
seeing that need the protections, right? And your first amendment right to
speak or pray doesn`t mean you have a right to yell at your boss at any
time, as the professor was saying with the government.
We are out of time, or my bosses will yell at me which they have every
right to do. I want to thank Aisha Moodie-Mills and Ira Stoll. Akhil Amar
and, of course, Anna are sticking around for more constitutional battling.
Up next, this week, in voter suppression, the buckeye edition, part II.
MELBER: Hello, Nerdland. Prepare yourself for a moment of deja vu. Or
maybe I should say, deja vote. See what I did there? Because I can`t say
it any better than Melissa or Joy Reid already have, like, you know, last
(BEGIN VIDEO CLIP)
JOY REID, MANAGING EDITOR, THE GRIO/MSNBC CONTRIBUTOR: Unfortunately, it
also means we`ve had to dust off the tried and true graphic that regular
viewers of MHP show will remember from the last election cycle, back in
2012. That`s right, this week in voter suppression! And this week in
voter suppression, the state of Ohio is back at it again.
(END VIDEO CLIP)
MELBER: Now, you guys know I love Joy. It is not a contest. But let me
Once again, today, we have an edition of "this week in voter suppression!"
And it`s brought to you by the letters o-h-i-o. It was just over a week
ago that Ohio governor John Kasich signed laws that cut six days off of
early voting and absentee ballots were limited. And then on Tuesday, Ohio
secretary state Jon Husted delivered another setback to voting rights with
another cutback to early votes. He squashed early voting during the very
times when a lot of working class people have free time, Sundays and
weekday evenings after 5:00 and all in the month before election day. And
you know, that also affects many African-American churches and community
groups that have run soles to the polls programs.
Now, here`s the kicker in that all of this. Mr. Husted, a republican,
changed the rules in a way that could repress turn out among the people who
tend to vote democratic. In the same year that he is running for re-
election against the person who`s accused him of being the, quote,
"secretary of suppression, Ohio state senator, Nina Turner."
Joining us now at the table, co-director of the advancement project, Judith
Browne Dianis, also Zack Roth, a reporter for MSNBC.com who just back from
Texas reporting on some voting down there. Let`s start with you. What do
we know here?
JUDITH BROWNE DIANIS, CO-DIRECTOR, ADVANCEMENT PROJECT: Well, what we know
is that they are back to the same game. They dusted off the playbook. And
Ohio, you know, the state that, remember, in 2004, had very long lines,
nine-hour lines, has decided to cut early voting again. We also know that
77 percent of the people who voted in early voting in 2008 were African-
American. So we know that this is going to hit African-American voters,
and like you said, Nina Turner is running. Someone who`s a friend of
democracy, but the Republicans continue to make it harder to vote.
MELBER: Yes, you mentioned Nina Turner. She was on Rachel Maddow earlier
this week. Let`s take a listen to that.
(BEGIN VIDEO CLIP)
STATE SEN. NINA TURNER (D), OHIO: Rachel, I want you to know that the Ohio
Democratic Party does plan to sue based on the voter suppression bills that
passed this week and also last week, asking for them to be joined in
federal court. And over the last five years, we have not lost one case
that has been filed in federal court. Help is on the way for the voters of
(END VIDEO CLIP)
MELBER: Zack, she is right on the precedent and help may be on the way.
And yet one of the things that`s frustrating to people who follow this
issue and who want to vote is that even after you win, right, you win that
case, but then you see these same shenanigans and tricks come up again.
ZACHARY ROTH, MSNBC.COM REPORTER: That`s right. And what Husted has done
is sort of used his executive power to unilaterally cut Sunday voting. And
so, and the other thing is, even if you do win that case, part of the point
of this, from the Republican side, is just to create that level of
confusion. So maybe you win the case, but then you`ve got to get out and
educate all of your supporters that, hey, we won the case. Those days of
early voting that you thought were off are back on. And you are going to
be able to register and vote on the same day and all that stuff. So, it
all just adds to the kind of noise level, and in the end, has the effect of
DIANIS: But from a litigator`s perspective, one of the things that`s
really interesting is that the Republicans now know, from 2012, that their
last-minute gain to suppress the vote backfired. That because of lawsuits
that groups like Advancement Project were able to bring, we were able to
stop them in their tracks. So now they`re giving themselves a little bit
more time, because they know that you can`t do it at the last minute,
because the courts don`t like you messing with democracy at the last
AMAR: So let`s connect this to what we were talking about in the last
blocks. We talked about how after the civil war, the constitution was
amended. It was amended to provide more religious freedom, but other
things as well. The words "right to vote" didn`t appear in the original
constitution because of slavery. They couldn`t. But beginning with the
14th amendment, this phrase, right to vote, appears no less than five times
in the constitution, in the 14th and 15th and the 24th and the 26th
amendments, the 19th as well on this, (INAUDIBLE) amendment.
So, the right to vote is said again and again and again in the
constitution. And we`re talking about Ohio and that`s not just some sort
of surprise since. You mentioned 2004, juts, I want everyone to remember,
that John Kerry lost that by 50,000 votes. If he had won that, he would
have been President Kerry. That we are talking about an increasingly
polarized country in some ways.
Well, there are only four states in the last presidential election that
were decided within less than five points, presidentially and they were
Ohio and Florida and Virginia and North Carolina. And we talked about
religious freedom in the last segment. This is targeting black churches.
We talked about how there`s a religious left as well as a religious right,
so they talk about religion and then they`re actually trying to make it
hard for soles to go to the polls.
PALMER: Let me play devil`s advocate. I mean, certainly, when you talk to
what the Republicans in the state are saying is, instead of having counties
and having a bunch of different rules that are happening, it`s going to be
statewide. And certainly, this is going to impact 2014, but also 2016. I
mean, that`s the really, I imagine for you guys, one of your biggest
DIANIS: We know why it`s happening.
AMAR: And the Trifecta is, if the Republicans hold the houses as they, I
think, are likely to do. I teach political science as well as common law,
and if they manage to win back the Senate, the only thing is that stands
between us and the complete repeal of Obamacare is the presidential
election of 2016, and this is important for them.
MELBER: Ana plays devil`s advocate. Let me play the devil in your devil`s
advocate, which is that uniformity has never been important in our voting
laws for hundreds of years and definitely not for the Republicans who are
PALMER: I`m just saying, if you talk to Republicans, like I do on the Hill
and others who are in favor of this, they say, why is this going to be that
big of an issue? If you go to the polls, having a voter ID, those kinds of
things that are going to make the system so that there are not going to
mean any issues in terms of scandals or other thing.
AMAR: This isn`t about voter I.D. this is making it easy for people who
pay government salaries to actually exercise our right to vote.
ROTH: And yes, right now they`re saying, yes, we need to make it uniform.
Before they were saying, we need to do this because there`s voter fraud so
we need the voter ID law. Before that, it was, we need to save money.
There`s always a rationale for it, but the results we see is the same.
AMAR: And the argument about religious freedom is trying to reach out
people of faith and accommodate them.
MELBER: And that we are also going to do -- and Zack, I mentioned, just
got back from Texas. We are going to look at your reporting. You were
down there and talk about the voting that has already begun.
MELBER: Welcome back.
Did you know there isn`t an Election Day in America anymore? It`s true.
As I was writing in 2012, when you ask how a candidate will do on Election
Day, you might as well ask someone what their pager number is. People used
to vote on a single day. In 2000, for example, nine out of ten people cast
their votes on the first Tuesday in November. Now, by the time traditional
Election Day rolls around, one in three Americans will have already taken
advantage of early voting, which is why the fall midterm elections really
began, well, this week. That`s when early voters in Texas cast their
ballots in advance of the first primary election, which is on March 4th.
It`s the second statewide election since the state rolled out its strict
new voter I.D. law last year.
It brings us back to the panel. Zack, you were down there covering the
politics of this. We won`t know until 2016 how it all completely works
out. But Texas is a state that took advantage of the ruling in Shelby V.
Holder that made it harder to vote.
ROTH: That`s right. They passed the voter I.D. law, which they had
previously passed, before that ruling that you referred to, it was blocked.
Right away, the next day, they came back and said, too bad, that law is in
effect. So this is -- these early voting days of the last week or two are
among the first tests we`ve seen of the impact of that law. Turnout isn`t
really high enough to get a conclusive picture of what that`s going to do.
But already, just from people I`m talking to, we`re seeing sop kind of
scattered problems on the ground. Where people think they have I.D. that
qualifies and doesn`t. For instance, they have an expired driver`s
license, which you can use to get on a plane or do other stuff, but you
can`t use to vote around this law. They have an out of state driver`s
license, maybe they`re a college student.
MELBER: Yes, let me jump in. Should it be harder to vote than get on a
DIANIS: No, it should be easier. I mean, getting on a plane is not a
right. This is a right under our constitution. It`s fundamental to who we
are. And so, we should have easy access. And we know that people have a
difficult time getting this I.D. You have to get the underlying birth
certificate, you have -- people have had to pay hundreds and thousands of
dollars to get some of these documents and can`t do it. And then, there`s
a lot of confusion around what you can do, what you can`t do, all leading
to problems with the polling place.
AMAR: And the constitution expressly says, there shouldn`t be a poll tax
on voting, but -- and we don`t want people who aren`t eligible to vote,
whether because of mistake, innocent mistake, or fraud. So, let`s, at the
very least, let everyone, about whop there`s a doubt, cast a provisional
ballot, and let`s figure out after Election Day, whether they were entitled
to volt or not. But these are not really in place.
DIANIS: And Texas also underscores the problem with the loss of section
five of the voting rights act, you know, the voting right acts stopped it
in its tracks. Section V allowed us to stop discrimination before it
happened. When we`re talking about elections, if discrimination happens,
it`s too late. The outcomes --
PALMER: The question to me though, is how high is the bar? In 2013, there
were only 122 of these kinds of IDs that were actually enacted to the
official IDs. So, what we`re saying is the bar too high, that people just
don`t care enough? And they don`t have the money to actually fill out and
get their certified birth certificate, or is it not as big of a deal that
we all seem to be thinking it probably might be.
ROTH: Yes. I don`t think it`s that people don`t care enough, I think
people are busy with their lives and working and not evolved in the system,
so that the process of getting an ID, when you need one, perhaps isn`t as
simple as it might be for you and I.
MELBER: Yes. And that we live in a society where everything that`s not
important has been made easier. It`s easier to get a text message, it`s
easier to buy a book online, it`s easier to go get your cash out. And yet
we have people in government, more in the Republican party than any other
institution, trying to make it harder to exercise that fundamental right.
We are out of time. And I warned you of that, professor. But this was a
tremendous conversation, great people to have here. And I should mention
to Judith`s point, the proposal, the voting rights amendments act, would
actually deal with restoring that. That`s an issue I`m going to continue
to cover in future segments in the future. Thank you.
DIANIS: But we won`t talk about it right now.
MELBER: Because we`re out of time.
Thank you, thank you, and thank you. We very much appreciate it.
Judith is sticking around for some other stuff next hour on an important
There is an about-face taking place on both ends of the spectrum in one
area that might finally have enough agreement for real progress, progress
that would impact millions of Americans. There`s more in Nerdland at the
top of the hour.
MELBER: Welcome back. I am Ari Melber, in for Melissa Harris-Perry.
Seven hundred eighty-one days, that`s how long American hikers Shane Bauer
and Josh Fattal were in jail on espionage charges. Shane spent four months
in solitary confinement, an experience so defining that when he did make it
back home seven months later, he began investigating how we use that same
punishment here in the U.S. He found many people who think we over-
incarcerate and over-punish. And in a new report for "Mother Jones"
magazine, he describes how many are rethinking their justice policies,
including some Republicans.
Now, to understand this reevaluation, I think you have to look at how we
got here. Today`s broken, overcrowded, and unjust prison system can really
be traced to this moment, June 17th, 1971.
(BEGIN VIDEO CLIP)
RICHARD NIXON, FORMER PRESIDENT: America`s public enemy number one in the
United States is drug abuse. In order to fight and defeat this enemy, it
is necessary to wage a new all-out offensive.
(END VIDEO CLIP)
MELBER: Even then, though, few understood just how much offense the
government was about to play. Republicans led the way and many Democratic
politicians followed suit, that included Speaker Tip O`Neill who reacted to
the overdose death of Boston Celtics star draft pick Len Bias with a big
anti-drug campaign. Democrats wanted to look tough on drugs that campaign
year, and that campaign which started with an emphasis on enforcing the law
became an arms race for who could pass new laws.
By 1986, that led Congress to pass the Anti-Drug Abuse Act, which
authorized very long jail terms for nonviolent drug use with mandatory
minimums. It passed the Senate by a vote of 97-2 with 46 Democrats on
board. And that policy forcing judges to put users in jail often
regardless of their individual situation or any mitigating circumstances --
well, that drove today`s prison realities, a prison population of more than
2.4 million people. That is more prisoners per capita than any other
country, ever. It`s a number that has quadrupled since 1980 alone. Those
numbers have gotten so bad, we`re actually now living through a pretty
remarkable backlash to the backlash.
The over incarceration crowd is retreating. Years of civil rights
organizing, including the argument that these policies are unconstructive
and racially unjust, coupled with expensive prisons and tight budgets are
driving what I think is a revolution and it has two parts.
One, a rejection of the 1980s-era politics of crime and fear and over-
incarceration and the stigmatization and criminalization of even minor drug
offenses like marijuana use.
And then, umber two, a serious embrace, and this is important, of
alternatives to prison -- treatment, education, specialized courts, and
really grappling with recidivism, something we should all care about. That
is why President Obama and Attorney General Eric Holder embraced sentencing
reform, like executive action to reduce mandatory minimums, and a new
system to consider commuting the sentences of people who are still serving
time under the old crack cocaine disparity.
And it`s why some Republicans, to their credit, are changing gears. Look,
this is a good example.
Here`s what Newt Gingrich said to "The New York Times" in 1992. We have to
build enough prisons so there are enough beds that every violent criminal
in America is locked up and they will serve real-time and they will serve
their full sentence and they do not get out on good behavior.
Shane Bauer flagged that in this "Mother Jones" article, but in 2011,
here`s what Gingrich said. There`s an urgent need to address the
astronomical growth in the prison population with its huge costs and this
loss of human potential. We can no longer afford business as usual with
prisons. It`s not just former politicians either.
The 2012 GOP platform written by RNC members uses what I think is a
structuralist critique of prisons, that it`s not only bad people who become
criminals, but bad laws that categorize people as criminals. Look at the
platform`s prison reform section. It says, quote, "The resources of the
federal government`s law enforcement and judicial systems have been
strained by unfortunate expansions, the over-criminalization of behavior
and the over-federalization of offenses."
New bills from Republican senators, Mike Lee and Rand Paul, both with
Democratic co-sponsors, proposed drastic reductions in mandatory minimums.
Now, how are those bills doing? You may not have heard about this, but the
Senate Judiciary Committee just passed the Lee Durbin smarter sentencing
bill by an overwhelming 13-5 vote. And unlike most bills in D.C., it`s
ready for a full vote on the Senate floor.
Reforming the criminal justice system is never politically easy. We have a
failed war on drugs in this country. It was started by both parties and
there are signs it may be ended by both parties.
Our panel today reflects some of the revolution on this issue. Judge Tim
Lewis, who was appointed by President George H.W. Bush to the prestigious
third circuit court of appeals. He`s received many awards, including
recognition in the Best Lawyers for America list for regulatory law and the
minority bar committee award for the Pennsylvania bar.
Again with us, Advancement Project co-director, Judith Browne Dianis, Judge
Billy Murphy, who served as a circuit court judge in the city of Baltimore,
as a criminal defense attorney. He`s been named one of the top 100 trial
lawyers in the U.S., as well as "Reason Magazine`s" Peter Suderman.
And on remote, Shane Bauer, the investigative journalist behind that piece
joins us from Boulder, Colorado.
Welcome to you all.
Shane, let me start with you.
Your previous pieces looked at solitary confinement in America. Now this
piece, you`re looking at the Republicans changing their position. Why?
SHANE BAUER, INVESTIGATIVE JOURNALIST: Well, I think it`s interesting that
right now, you know, after three decades of kind of a massive rise in our
prison population, that we`re seeing it shift. In 2009, our prison
population started falling.
And, you know, a lot of this is actually coming from conservative policies.
Texas`s prison population has fallen 20 percent since 2007. You`re seeing,
you know, people like Newt Gingrich, Rand Paul, call for a repeal of
mandatory minimums. And you know, they`re kind of shifting a lot of
conservative states right now.
There`s a group called Right on Crime that`s really kind of leading the way
MELBER: Yes, and you mentioned Rand Paul. He spoke about Judge Lewis,
who`s here at the table. Let`s take a listen to that and get your
(BEGIN VIDEO CLIP)
SEN. RAND PAUL (R), KENTUCKY: Federal Judge Timothy Lewis recalls a case
where he had to send a 19-year-old to prison for conspiracy. What was the
conspiracy? The young man was in a car where drugs were found. I don`t
know about you, and this is Judge Lewis, but I`m pretty sure one of us
might have been in a car in our youth at one point in time where there
might have been drugs in the car.
(END VIDEO CLIP)
MELBER: Judge Lewis, your take there?
HON. TIMOTHY K. LEWIS, FORMER FEDERAL JUDGE: You know, when Senator Paul
made those remarks, I got a call from a colleague of mine at my law firm
who said, I never thought the day would come when Rand Paul would be
quoting Tim Lewis.
But I think that for those of us who care deeply about this issue and have
been writing and working and fighting for reform, we don`t care where the
support comes from. It doesn`t matter. It doesn`t matter to people like
Weldon Angelos (ph) who`s serving 55 years in federal prison for selling
marijuana on three occasions, a total amount of $350 worth of marijuana,
because he had a firearm, allegedly, on his person at the time.
Weldon Angelos doesn`t care if it comes from Senator Paul, Senator Durbin,
Tim Lewis or anyone else. But this is a welcome convergence, I think, of
ideologies at a time when more, greater bipartisanship is truly needed. I
think that Senator Paul and many on the conservative side of the aisle have
recognized that it is very difficult to make the argument that one is for
less government and less government spending and not be in favor of prison
reform and other means of reducing what has become a significant problem.
PETER SUDERMAN, SR. EDITOR, REASON MAGAZINE: I think that, you know, the
interesting thing about this issue is no matter how you look at it, when
you look at the facts, regardless of your ideology, regardless of your
desired outcome, the conclusion is pretty clear. We are spending too much
money and locking up too many people. The federal prison system is right
now operating at 136 percent of capacity. It`s on track to 155 percent.
I mean, that`s just not sustainable, the Rand Paul, Mike Lee proposals are
supposed to be, are supposed to save about $2.5 billion and reduce prison
bed usage by tens of thousands, hundreds of thousands, perhaps, over the
next few years.
I mean, this is the sort of thing that needs to be done, and regardless of
where you come from, this is the sort of thing that you can see the case
MELBER: Yes. And, Shane, bringing you back in here, I mean, Peter`s
speaking from the vantage point of writing for a libertarian magazine.
They have been consistent on this for some time. It is really the
politicians who have finally found the conservative arguments here, right?
BAUER: Right, yes. And I think, you know, if you look at the polls in
Texas, for example, Republicans in Texas in a recent poll were 80 percent
in favor of drug treatment over incarceration for drug offenders. You
know, and then off situation like in California, where you have a
Democratic governor that is resisting reforms, you know, and last summer,
Jerry Brown vetoed a bill that would have reduced sentences for low-level
drug crimes, and you actually had conservatives, this group, Right on
Crime, that was lobbying for that bill in California.
MELBER: And I should mention, Shane, to your point. Not just cost,
Judith, but also to the issues of the impact on communities of color. Rand
Paul quoted Michelle Alexander to talk about this as Jim Crow.
DIANIS: Yes, pretty amazing. But, yes, the collateral consequences for
communities of colors -- I mean, it`s devastated our communities, from not
only the fact that people are being taken out of our communities, but on
top of that, at the end of the day, they lose their voting rights, they
have a hard time finding employment on the other side. And so, we have all
of these other impacts that disproportionately impact people of color and
communities of color.
MELBER: I`m glad you mentioned voting rights. The Obama administration
actually has a new proposal on that that we`ll go to.
I want to thank Shane Bauer for your reporting and for joining us from
And still to come, "Orange is the New Black" author, the real life Piper
Kerman, but first, the impact of Attorney General Eric Holder, that`s next.
(BEGIN VIDEO CLIP)
ERIC HOLDER, U.S. ATTORNEY GENERAL: And through the department`s civil
rights division and other components, we will continue to work with allies,
like the Department of Education, and others throughout the federal
government and beyond to confront the school-to-prison pipeline and those
zero tolerance school discipline policies that really do not promote public
safety and that transform too many educational institutions from doorways
of opportunity into gateways into the criminal justice system.
(END VIDEO CLIP)
MELBER: That was Attorney General Eric Holder, challenging how so many
young people enter the prison pipeline. He was addressing the American bar
association, from august. He also outlined the justice department`s plan
to reduce mandatory minimum sentencing, which we mentioned for nonviolent
drug crimes. Before he became the first black attorney general in U.S.
history, holder saw how mandatory sentences worked firsthand when he was a
D.C. trial judge.
Last year, in fact, he told "The Daily Beast", quote, "I saw an ocean of
young men come before me, who should have been the future of my city,
destined to serve long jail terms and then spend their lives dealing with
all of the negative consequences of being an ex-offender." As Holder
approaches these changes to federal mandatory minimums, he does so while
making this moral and civil rights claim.
We go back to our esteemed panel here for this special discussion.
Judge, talk to us about that, both how children end up getting treated
immediately as potential criminals, rather than some other approach, and
what it does when they come back out of prison.
WILLIAM H. MURPHY, JR., CRIMINAL DEFENSE ATTORNEY: Over-incarceration, as
Michelle Alexander has pointed out, is the single worst problem black
people have to rebuild families, to educate children, to make sure that
everyone is as productive as a human being is capable of being in a society
of otherwise great opportunity. And so, we`ve got to stop this over-
incarceration as quickly as possible if we`re going to put black people
back on the road to productivity.
But I`m skeptical about these reforms. Not because I`m not enthusiastic,
I`m very enthusiastic about what I hear and what I see.
But the resistance on the ground is going to be overwhelming. Prosecutors
are already up in arms about it. They`re emotionally invested in the old
way of doing business. They`re used to sending people to jail for long
periods of time and not giving a damn.
Judges are in the same position. They`re used to the system. There have
only a minority of judges who have protested against the regime.
So I don`t anticipate there`s going to be quick change. That`s why Obama`s
appointment of judges is a very critical step in bringing all of this to
being. And Republicans are now trying to sabotage his efforts to fill all
of the vacancies in the federal system.
MELBER: Let me go to your point to Judge Lewis, and I should mention, many
of the prosecutors association have said they don`t want the mandatory
minimums taken away. And interestingly, they haven`t said mandatory
minimums are always good. What they`ve said is, it helps us threaten and
bully people into a plea bargain.
LEWIS: It`s an absurd argument. It`s an unfortunate position, and
prosecutors have not sat there and had to sentence a young 19-year-old to
ten years in prison for a first offense, never been in trouble before in
his life, had an opportunity to go to college.
What is the gain in that? There is no gain in that, to society or to
anyone else. Prosecutors don`t have to sentence somebody, as I mentioned
Weldon Angelos, to 55 years in prison for selling $350 worth of marijuana.
It`s absolutely absurd and it is outrageous.
These are medieval sentences. They do nothing to benefit society, they do
everything to hinder our economic development, societal development, and
obviously families are directly impacted.
MURPHY: But, Tim, I disagree with you fundamentally on the point about
prosecutorial power. It is prosecutorial power that is driving this
LEWIS: I didn`t address power. That`s the problem, is the power.
MURPHY: That they have too much power. They don`t want to give it up.
MURPHY: They`ve now set the sentences. They have the charging power.
These sentence guidelines give them this enormous power to coerce people to
plead guilty. And by the time they`ve pled guilty, the judge`s hands are
And so, Tim Lewises of the world don`t have a choice. They have to impose
the sentences that, in effect, have been imposed by prosecutorial power.
And the system was designed to be a prosecutor`s this coercive power.
LEWIS: But the question had to do -- and you and I do agree -- but the
question had to do with the prosecutor`s positions on mandatory minimum
MURPHY: Yes, they want to hold on to the power.
LEWIS: And what I said and what I believe is that this is just an absurd
argument. They have not been in the position where they`ve actually had to
impose the sentence, nor live with the ramification.
MURPHY: That`s where I disagree with you. They have already imposed the
sentence that you have to rubber stamp as a federal judge. So, they`re
LEWIS: That is true, that is true.
DIANIS: And we need sweeping changes with regard to prosecutors, who`s
appointed as prosecutors, who`s in the pipeline, how they, you know, in
some places, where they get elected, who is being elected to those seats.
You know, clearly, we saw in recent trials, like the Dunn trial, that
prosecutors make all the difference and people need to wake up and
understand the power that they have.
MELBER: Yes, I think you put it well. In the Dunn trial as well as the
prosecution of George Zimmerman, something we`re touching on later in the
hour raised these issues. We`re going to move from some of the bad news
back to the good news, particularly what`s working, up next. The
surprising place where reform is working.
Stay with us.
MELBER: It`s no surprise that Texas has aimed to be tough on crime for
many years. But recently, Texas has found that relying on prison for so
many different infractions, for adults and nonviolent drug offenses to
children`s mistakes at school -- well, it turned out to be pretty tough on
Texas and its budget.
In 2012, only the federal system`s population of prison was larger than
Texas`s prison population. Back in 2006, Texas was facing a prison system
that would cost more than $2 billion. That kind of cost didn`t just move
Texas voters, it moved one of the most recognizable conservatives in the
state, Rick Perry. So, in 2007, faced with another prison reform bill,
Perry sat down with reformers to make changes.
And now, this is Texas where it can feel like the Democrats are on the
right and Republicans are off the grid, but here in Texas, Perry hashed out
a bipartisan package. He created a new criminal justice oversight
committee to evaluate reforms and successes. It expanded drug courts,
which are key to push treatment over prison, $241 million to create parole
and probation treatment programs, shortened probation terms and a medical
And it`s been long enough that the results are coming in. The state`s
prison population has stabilized. Texas closed a state prison for the
first time in 2011.
And by locking up fewer people, the reforms saved projected more than $2
billion for Texas by 2012. And according to a new report by the very
Institute of Justice, Texas isn`t the only state working on this. Since
2000, 29 states have actually enacted laws to increase some kind of
judicial discretion for sentencing. And according to one report, the
three-year recidivism rate for inmates released in 2007 improved to 24.3
percent over the old rate of 31 percent. That`s a 22 percent decline.
That`s -- I want to bring back in the panel and talk about the fact that
recidivism is something that everyone cares about, because you don`t want
to send people off to jail and send them on a cycle of repeat offenses.
And what we`re finding is, and I`ll start with the judges. What we`re
finding is, when you actually take people and not only deal with whether or
not they should have a long endless term, but whether they should have
programs, drug courts, treatment, education in prison, the recidivism rate,
which is something everyone opposes, the recidivism rate drops.
LEWIS: Ari, it`s as I said before. This is a very welcome ideological
convergence. We have different conservatives approach and the more
progressive approach that Democrats seem to pursue meeting here and
recognizing that alternatives do work and are important. That thought-out
programs that are designed to effect the status of inmates and, obviously,
effect their status after they leave prison, can work, as opposed to the
traditional, just send them in and let them sit there for many, many years
and so forth.
So, this is a good thing. Texas` program has been very successful, for the
reasons that you`ve just pointed out. It is being copied elsewhere around
the country. There are more -- we see more alternative sentencing courts
developing in states throughout the country. And they have had an impact
on recidivism, and that, obviously, is very important to all of us.
So, it`s a good development.
MELBER: Let me play some sound from Attorney General Eric Holder, praising
the states. Take a listen.
(BEGIN VIDEO CLIP)
HOLDER: Alongside other important reforms -- in Texas, investments in drug
treatment for nonviolent offenders and changes to parole policies have
brought about a reduction in the prison population of more than 5,000
inmates last year alone. The same year, similar efforts helped Arkansas
reduce its prison population by more than 1,400. In Georgia, North
Carolina, to Pennsylvania and Ohio, and far beyond, reinvestment and
serious reforms are a proven public safety and saving precious resources.
(END VIDEO CLIP)
MURPHY: These reforms, as they`re called, are not really reforms at all.
They`re like a person who`s overeaten and the doctor tells them that unless
he cuts back on his food intake, he`s going to get sick. It isn`t a change
in the diet. And that`s what we really need.
So, instead of the bad food of the war on drugs, we need to eliminate the
war on drugs. I`m a member of LEAP, Law Enforcement Against Prohibition,
and I agree more with the libertarians on this issue than with the
Democrats and that is, as long as we have drug prohibition, we`ll have a
steady diet of bad food, over-incarceration. And these so-called reforms
are like putting band-aids on the cancer that is the war on drugs.
MELBER: Judge, let me go to you --
DIANIS: Well, you know, a song is coming on here. Money, money, money,
money. I mean, this is where you find your partners because the
Republicans are saying, too much money. But at the end of the day, we have
to have a change in thinking so that we`re thinking about rehabilitation
instead of punishment. We still do have a punishment mentality and we have
to get away from that.
MELBER: Yes, Judith Browne Dianis, I know this is your last block at the
table with us and I`m glad you said that.
This is something we`ll continue to talk about, because when I interviewed
Attorney General Eric Holder, something he`s very passionate about is drug
courts, which is really a very new model, some of what I think you`re
talking about --
MURPHY: I hate drug courts.
MELBER: You hate drug courts? I`m going to find out.
Thank you, Judith Browne Dianis.
Up next, the woman behind "Orange is the New Black" joins us.
(BEGIN VIDEO CLIP)
PIPER KERMAN, AUTHOR, "ORANGE IS THE NEW BLACK": Unlike the normal hive-
like communities of prison, 24-hour lockdown leaves you in a 6 x 8 cell for
weeks or months or even years, and this is unproductive for individuals,
for prison institutions, and the outside communities, to which 97 percent
of all prisoners return.
(END VIDEO CLIP)
MELBER: That was Piper Kerman, author of the book, you may have heard of,
"Orange is the New Black," which also is a Netflix series. She was
testifying before the Senate Judiciary Committee at a hearing that looked
at the use of solitary confinement by federal prisons. When it comes to
solitary confinement, changes are coming, but slowly.
New York state on February 19th became the largest prison system to reform
the way solitary confinements used, under new rules. No one under 18 years
of age will be put in solitary, nor will anyone who`s pregnant, and
solitary will be limited to 30 days for those who are developmentally
disabled, small steps.
The negative psychological steps of solitary confinement can be permanent
for any of the approximately 80,000 inmate who is live in some sort of
restrictive confinement. And the financial costs are pretty staggering.
At Pelican Bay State Prison in California, the place with 30,000 inmates
protested conditions including solitary confinement last year. Between
2010 and 2011, the cost to house an inmate in security housing units like
this was more than $70,000. An inmate in an administrative segregation was
nearly $78,000 compared to the usual price of $58,000. So, given the
trauma and the cost that solitary confinement brings, why not more states
looking for alternatives to end the practice completely?
Joining us now at the table is Piper Kerman. Thank you for being here.
KERMAN: Hi, Ari.
MELBER: You put a lot of this out into the public consciousness and the
culture, particularly because you had a book people wanted to read, and a
show people wanted to watch. What are your goals here?
KERMAN: In talking about solitary confinement specifically, my goals are
to see far fewer people put into both administrative segregation, which is
long-term solitary confinement, but also disciplinary segregation, which is
theoretically short-term, but is often 90 days, which is a very long time
for someone to spend in solitary confinement, particularly if they suffer
from mental illness, which a disproportionate number of prisoners do suffer
from, and particularly female prisoners.
MELBER: Right, and you said, we`re talking about only about solitary,
because you`re working on several things, not only solitary. Let me play
some of your testimony on another important issue. Let`s listen.
(BEGIN VIDEO CLIP)
KERMAN: Solitary is also misused as a threat to intimidate and silence
women who are being sexually abused by staff, which is a widespread problem
in prisons, jails, and detention centers that house women. There are
egregious examples of solitary confinement being used by prison officials
to hide horrific, systemic sexual abuse under their watch. The terrible
threat of isolation makes women afraid to report abuse and serves as a
powerful disincentive to ask for help or justice.
(END VIDEO CLIP)
MELBER: We wanted to look today at many aspects of the problem in our
failed war on drugs and our over-incarceration. We have spent some time
talking about a lot of issues. We haven`t even gotten to the fact that
inside a lot of these prison systems, men and women are facing tremendous
illegal sexual misconduct.
KERMAN: That`s true. You know, two particularly notorious examples of the
problem that I referred to in my testimony include the Otter Creek
Correctional Facility in Kentucky, where 400 women prisoners were moved out
of the facility because the correctional system of Kentucky, you arrived at
the conclusion that they couldn`t stop the rape culture and sexual abuse
that was taking place there. So rather they moved all those women out.
Currently in Alabama, the Tutwiler Prison for Women is under a DOJ
investigation for unbelievable, again, systemic sexual abuse, and that
includes the use of solitary confinement to silence women who are
SUNDERMAN: Solitary confinement is itself abuse, if you go back and look
at some of the cases that have been lodged against solitary confinement
centers. The details included in them are utterly horrific and that`s for
normal solitary treatment, not in the instances where the guards are going
far beyond -- you know, what is expected or you know, what is asked of
them. People are kept in tiny rooms for 23 hours a day with the lights on.
You can`t shut the lights off. You`re shackled to a pole while they
conduct therapy sessions with you. They do mental health interviews with
you through the little tiny window in your door, so you can`t even have any
contact with other human beings. It`s just incredibly shocking. And it`s
incredibly expensive. It`s not just the expense of keeping the prisoners,
though, there`s also a huge legal liability.
MELBER: Right. Look, it`s hard to hear about and think about, which is
why people don`t want to talk about it. Judge Lewis, President Bush Sr.
appointed you, you were the youngest federal judge, you were on the third
circuit. You have seen more than a lifetime of a judge on a lot of these
How do we change this?
LEWIS: Well, first of all, I think that Piper`s testimony before the
Senate Judiciary Committee is going to be very helpful. And I think well-
received. I believe that there is now a bipartisan effort to address the
problem of solitary confinement as well as a number of the other issues
that we`ve been talking about.
When you -- when I look at this issue, I do as I hope many do, which is to
ask myself, what is this accomplishing? Why are we doing it? And what are
the effects? And when you examine the question from that perspective, it
doesn`t accomplish anything except punishment and very abusive punishment,
It doesn`t do anything -- if anything, it actually enhances the chance of
recidivism. And the long-term effects have been documented. Heavy
psychological effects and, so, it really serves no purpose.
Now, that said, we do -- we have maximum security, super max penitentiaries
in the federal system that are designed to house the most dangerous inmates
in the country. And I think that there are some who, whether -- if they`re
a danger to themselves or a serious danger to others, there are some
significant measures that must be taken.
But this is different. I mean, nine, 10 months of solitary confinement or
longer than that for minor transgressions, significant transgressions,
these can be addressed in different ways.
MELBER: Right. And whether --
LEWIS: The privilege is taken away and so forth.
MELBER: Yes, and judge, whether it`s a last resort or something that is
being used commonly and abusively.
Up next, as we`ve been saying, we go to the good news, the solutions to
Stay with us.
MELBER: Welcome back.
Community service, restitution, halfway houses, drug courts, probation and
community corrections, home confinement and electronic home community
service, mental health courts, restorative justice.
What do all these things have in common? Well, they`re all alternatives to
what we`ve been talking about this hour, the traditional sentencing regime.
And according to a December poll, 71 percent of Americans now favor the
elimination of mandatory minimum sentences for nonviolent offenders in
favor of, for example, discretionary spending.
A 2012 Public Opinion Strategy survey shows 69 percent of those surveys
support alternatives to prison for nonviolent offenders.
So, what is the holdup?
That`s what we`re asking here as we complete an important discussion and
panel with judges, with leaders, with libertarians.
Judge Lewis, I want to start with something that Eric Holder has been
working on, and I had the chance to travel with him to Roanoke to a
veteran`s court. That is one of the specialty courts we`ve been talking
And I want to put up on the screen what the attorney general has said. "By
offering alternatives to incarceration and linking participants with vital
rehabilitation and treatment resources, this program provides a model for
preventing recidivism, reducing relapse and empowering veterans convicted
of certain nonviolent crimes to rejoin their communities as productive,
law-abiding members of society. It`s also saving resources."
I want to tell you in my reporting on this, I hadn`t exactly heard of
veterans courts, even though I`m a lawyer. When I looked at this, what I
found that a majority of our incarcerated veterans have drug problems. A
majority also suffer from PSD and emotional strain. This is a piece of
this crisis, of this immorality, I think, that might be one of the hardest
ones for people to really swallow. That we take men and women who served
this country, risked their lives.
They come back with emotional strain, and if they end up self-medicating
with drugs or alcohol, they`re treated like -- well, like a lot of other
people who have those problems in this country, which is that they`re
immediately locked up.
Judge Russell in Buffalo started, as you know, a veteran`s court a few
years ago. There`s now over 100 around the country and the alternatives
model and Attorney General Holder oversaw the first federal one.
LEWIS: Ari, we should be very grateful that we have an attorney general
who has served as a prosecutor, as a judge and a defense lawyer, and now as
the chief law enforcement officer in the United States, who has praised the
Roanoke program, as you mentioned. Of course, I`m familiar with the
success in the Buffalo program. These are very, very important to the
long-term care of, as you pointed out, those who have served our country,
bravely on the battlefield. Some of these people have brought back with
them problems that are unique and have to be dealt with in a different way.
And so, these veteran courts are designed to focus on some of the issues
that those who have faced combat have, or have developed. Now, drug
treatment, which is the primary issue here for nonviolent offenders, low-
level offenders, is, I think the smart way to go and the right way to go,
because we see what has happened to the prison population by focusing our
efforts on mandatory minimums and the other problems that plague the
criminal justice system for many, many years now.
Thankfully, these are changing. I think that veterans court, drug courts
in general, and any number of other alternative sentencing approaches are
very key to that.
MELBER: And that`s something that really is significant and it`s funny,
the president had his year of action, but he didn`t talk as much in the
State of the Union about all the executive action they`re taking on this
issue, because of the politics, which Judge Murphy was talking about. Let
me play Attorney General Eric Holder here in our interview talking about
(BEGIN VIDEO CLIP)
HOLDER: I think we have a moment in time now where Congress, as well as
those of us in the executive branch, think that it`s time to pull back just
a bit. And so I think that, I hope that will be a part of my legacy.
(END VIDEO CLIP)
MELBER: Piper, he was saying, let`s pull back from using incarceration as
the response to every social problem.
KERMAN: Mm-hmm. And there`s a lot of discussions about confinement and
there`s a lot of discussions about reentry, but the name of the game is the
front end of the system. We really want to reduce our prison population.
And that means sentencing reform and it means courts reform. And it means
innovative courts like the ones that you`ve described. One caution on the
flag there is that those defendants who go into special courts really do
need to have defensive counsel that is meaningful, so they need to have
public defenders or court-appointed counsel. Eighty percent of criminal
defendants are too poor to avoid a lawyer.
They rely on a public defender or a court-appointed counsel and they need
to get the same quality of defense that I got.
MELBER: Right. We`re out of time.
I want to give a counterpoint to Judge Murphy before we go.
MURPHY: The problem with these reforms is due process. And we see that
wherever there is no entitlement to protection on the level that you get in
a court, these special courts run over the rights of the people that they
are designed to protect.
And so, in many ways, they make it easy for people to go to jail. They
make it easier for people to violate their probation, because the people
involved in special courts don`t get the training and experience that is
necessary to understand the nature of addiction and how to deal with it.
MELBER: And I will say, your honor. I appreciate that note of caution and
want to make sure to get you in. And I want to thank a very special panel
we were able to have here, Judge Tim Lewis, Piper Kerman, Judge Billy
Murphy and Peter Sunderman.
Up next, a deep look into the trial of George Zimmerman. Legal analyst and
author of the ne a new book, Lisa Bloom, joins us.
MELBER: Welcome back.
Wednesday, February 26th marched two years since Trayvon Martin`s death.
On Tuesday, Martin`s father, Tracy, spoke with MSNBC`s Reverend Al Sharpton
about remembering his son and continuing his fight to prevent the kind of
violence that took his life.
(BEGIN VIDEO CLIP)
TRACY MARTIN, TRAYVON MARTIN`S FATHER: It`s like the value of African-
American kid`s lives really don`t matter. We got to stand up as fathers,
we got to stand up as leaders and let this country know, you know, it`s not
OK to kill our kids and just, you know, live a little slap on the hand and
you walk away. It`s not OK.
(END VIDEO CLIP)
MELBER: It was, of course, one of the most high profile trials in 2013.
Martin`s admitted shooter, George Zimmerman, who all along had claimed and
asserted self defense, was found not guilty of second degree murder last
July. He was also acquitted of a lesser charge of manslaughter.
Legal analyst Lisa Bloom who was following the Zimmerman trial closely
shares her analysis of what happened in the trial and raises questions
about justice raised and gun laws in her new, now best-selling book,
"Suspicion Nation: The Inside Story of the Trayvon Martin Injustice and Why
We Continue to Repeat It."
Throughout her book, Bloom critics the prosecution`s trial tactics in the
Zimmerman case, presents the arguments she would have made, painting a he
portrait of the trial and the verdict that might have been.
Joining us is Lisa Bloom, a legal analyst for Avvo.com, and, of course, a
We`ve discussed this trial on air and off-air. Let me start by asking you
what is new and important in the book in your view?
LISA BLOOM, AVVO.COM: Well, as I covered the case day to day, I was
commenting on what I was seeing. But I had an uneasy feeling there was a
lot going on behind the scene. That`s what I wanted to investigate after
the trial was over.
I discovered, for example, a very disturbing story what was going on during
the sequestration process among the jurors for three weeks. I opened the
story with Naddy`s (ph) story, she`s the only nonwhite juror. And she
talks about being demeaned and belittled behind the scene, so that when
deliberations came around, she says she had no voice.
And it`s a very disturbing story. She was the only one who, for example,
had a deputy posted outside of her hotel door. She wondered if that was a
racial profiling issue or just a coincidence. The way people are often
wonder when they`re watched by law enforcement, is it me, is it my skin
color or something I did?
So, that`s a disturbing story.
I also talk about Rachel Jeantel, one of the most important witnesses in
the case, who was so criticized during the trial. I get her story behind
the scenes. How poorly she was prepared, for example. How nervous she was
and ultimately the story she wanted to tell about conversation with Trayvon
Martin that she wasn`t asked about and she wasn`t able to tell.
MELBER: Right. And a lot of those are the restrictions of the institute
(ph) of a trial and of calls that have to be made, but in a trial like
this, calls that were understandably second guess. At the broader, let me
ask you this, though, at the broader level of the policy reaction, which is
where a lot of people are looking, the president spoke this week
specifically. Take a listen to what he said on Thursday.
(BEGIN VIDEO CLIP)
BARACK OBAMA, PRESIDENT OF THE UNITED STATES: In the aftermath of the
Trayvon Martin verdict, with all the emotions and controversy that it
sparked, I spoke about the need to bolster and reinforce our young men.
And give them the sense that their country cares about them and values them
and is willing to invest in them.
(END VIDEO CLIP)
MELBER: Your book is also about where we go from here.
BLOOM: Right. You know, it is about race. And in so many of these
trials, we don`t want to talk about race.
One of my big criticisms in this case and in the Jordan Davis case, was the
prosecutor`s absolute fear about talking about race. And the case is
clearly it was involved. That`s what`s gotten so many people stirred up in
the case. But inside the courtroom, it`s a nonissue because they`re afraid
to raise it.
It turns out while many of us are uncomfortable talking about race, it can
be done. And I talk in the book about how it is done effectively, for
example, in doctor`s offices, where we know that doctors spent about twice
as much time were with white patients as the black patients. That`s the
bad news. The good news is when they`re advised of that problem, many
doctors change their behaviors. And it happens with police officers and it
can happen in courtroom.
MELBER: Let`s pause on that because you look into that. That`s something
in psychology they call attitude inoculation. The idea of actually
learning about a problem in your mind will make you less likely to have
I want to put up on the screen a problem that a lot of us have, which is we
fear the wrong things. You document in the book, people are afraid of
crime and some people are afraid specifically of the criminal danger afraid
to beat and they`re packing and they`re walking around.
I want to put up on the screen. You actually looked at the leading causes
of death in this country -- heart disease, cancer, respiratory disease,
stroke, accidents in their home, Alzheimer`s, diabetes, you go down that
list, we couldn`t get to violent crime.
BLOOM: Right. Homicide is not out there.
MELBER: You write in your book, near the end, that we would be better off
work on the slippery surfaces in our homes than carrying guns to protect
BLOOM: Yes, if you want to fear America`s number one killer, fear
cheeseburgers, right? It`s not crime at all. In fact, crime is way down.
It`s down to 1960 levels. It`s down in most of in the south where we see a
lot of these cases going on.
So, this fear of criminality -- and let`s call it what it is, the fear of
the criminality black male criminality. That`s at the root of the George
Zimmerman case, at the root of the Michael Dunn case. It`s at the root of
the Renisha McBride shooting. It`s the root of so many cases, is very
And I also, and I call the book "Suspicion Nation" because I want to get us
fast our peers and our suspicions of our neighbors.
MELBER: Lisa Bloom, the book is a best seller. People can check out.
Thank you for your reporting and your time.
BLOOM: Thank you.
MELBER: That is our show today. I want to thank you at home for watching.
This was a treat. I will see you next Saturday at 10:00 a.m. Eastern.
Now, it is time for a preview of "WEEKENDS WITH ALEX WITT."
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