April 26, 2014
Guests: Glenn Martin, Judith Browne Dianis, Raul Reyes, Jo Becker, Ashley
Lininger, Kris Perry, Sam Stier, Dave Zirin, Akhil Reed Amar, Judith
Browne-Dianis, Halley Potter, Raul Reyes, Asia Womack, Gerloni Cotton
JONATHAN CAPEHART, MSNBC GUEST HOST: This morning, my question, Cliven
Bundy, you know we can hear you, right?
Plus the book making Andrew Sullivan so upset. And the story that wasn`t
included and the political risk President Obama is taking by reform a
broken system. But first, why 76 college students in Chicago have the
entire world of sports watching.
CAPEHART: Good morning. I`m Jonathan Capehart in for Melissa Harris-
Perry. In Nerdland, the votes are in. 76 Northwestern University football
players were eligible to cast a secret ballot in one of the more publicized
union votes in recent history. And that vote was held early Friday
morning. We don`t know the results yet and we won`t be getting any exit
polling. Not only were reporters not allowed anywhere near the vote,
literally kept a certain distance away from the campus building where the
players voted, but as the "Chicago Tribune" reported, we may not know for
months what the players decided. Why not? Northwestern, the university,
not the football team, filed an appeal with the National Labor Relations
Board on April 9th to overturn the March decision by a regional director
that made scholarship athletes on the team employees in the eyes of the
law. On Thursday, the NLRB agreed to hear out the university`s concerns
and the balance will be impounded until the NLRB rules on the appeal.
That`s why regardless of how the players voted, we`re not calling it, for a
good long while, likely. Still, the university held a presser yesterday
after the vote to say this.
(BEGIN VIDEO CLIP)
ALAN CUBBAGE, VP, UNIV. RELATIONS, NORTHWESTERN: Northwestern has been a
leader in a lot of the things that the union has raised. Extended medical
benefits for players, four-year scholarships. These are things that
Northwestern University already does. We`re a leader. Our students are
leaders, and we intend to continue to be leaders.
(END VIDEO CLIP)
CAPEHART: Its appeal to the NLRB was just the start of the university`s
fierce and controversial opposition to the idea that their football players
may form a union. That idea was born, you could say, with three little
letters, APU standing for All Players United. Those letters were worn by a
number of college football players during games last September 21ST. And
while the message may have been written on a wristband, it was heard loud
and clear. There were college players who wanted a change in how the NCAA
does business off of their sweat and hard work. Among those wearing APU
that day was Kain Colter, the Northwestern Wildcats quarterback and co-
captain. Last season Colter would go on to spend the last half of his
senior year fighting for that cause. In January, he led a group of players
who submitted to the National Labor Relations Board signed union cards and
a petition to be represented by a labor union. The questions over whether
student athletes were being mistreated or even exploited particularly in
big money sports like football and basketball was no longer something just
being discussed in the zeitgeist, it was turning into very real action.
One month ago today, the work of Colter, his fellow players and the College
Athletes Players Association or CAPA bore fruit when the Chicago branch of
the NLRB ruled that the scholarship athletes on Northwestern`s football
team qualify not to get paid, but for employee protections and the ability
to hold a vote on whether to be represented by CAPA. The university and
the NCAA began to push back almost immediately. A report earlier this week
by CBS Sports.com detailed the schools anti-union talking points were in
internal Q&A document CBS obtained. Here`s a sample response to an unnamed
player expressing concern. "Northwestern agrees with you that you men are
students, not employees, and that`s why the university is appealing the
decision. That process has to go forward, but you can still express your
desire to get back to being students by voting no." Head coach Pat
Fitzgerald, who makes $2.2 million a year, yes, he makes $2.2 million for
coaching unpaid athletes added after an April 5th practice that he hopes
the players vote no. But he didn`t stop with that. He was -- here`s part
of what "The New York Times" termed a blitz to defeat an effort to
unionize. According to that report, Fitzgerald wrote this to his team in
an e-mail. "Understand that by voting to have a union, you would be
transferring your trust from those you know, me, your coaches and the
administrators here, to what you don`t know, a third party who may or may
not have the team`s best interests in mind." Last week on this show,
former NCAA champion basketball player Swin Cash, also a member of the
WNBA`s executive committee, had a message for the Northwestern coach.
(BEGIN VIDEO CLIP)
SWIN CASH: But before I address that, let me address Pat real fast. He
needs to go and take several seats, first of all --
CASH: Because seriously, Pat, you come into these kids` home. You come
into mothers and fathers and talk about how I`m going to take care of your
kid. And look after their best interests. No, you`re looking out for your
own best interest. And how can you say that would affect - like that and
talk about you care about these players` rights and you have players that
are saying they`re hungry, players that are traveling, coming back late
night, restaurants and places aren`t open to get food. Like he can go take
several seats. I can`t even believe he`s commenting. Coaches, stay out of
(END VIDEO CLIP)
CAPEHART: "Nation" magazine sports editor Dave Zirin expressed similar
thoughts Thursday writing "No matter how tomorrow`s vote goes and it may
take months before we know the results, the NCAA will never be the same.
But even after the smoke has cleared, Pat Fitzgerald should be held
accountable for his efforts to use his power over these young men to
prevent them from having a seat at a table that has kept him very well
fed." Joining me now from Chicago where he`s been reporting on this vote
is Dave Zirin. Dave, thanks for being here.
DAVE ZIRIN, SPORTS EDITOR, THE NATION MAGAZINE: Great to be here,
CAPEHART: So, Dave, I want to play you this second clip from the
Northwestern presser yesterday. Take a listen.
(BEGIN VIDEO CLIP)
CUBBAGE: There have been some allegations by union supporters that
Northwestern engaged in unfair labor practices during the election
campaign. That is simply not true.
(END VIDEO CLIP)
CAPEHART: Now, Dave, I understand you spoke to some labor lawyers about
this. What did they say about the actions of Northwestern and its head
ZIRIN: They said that Pat Fitzgerald is either walking a very fine line or
he is just basically thrown up on that line. And keep in mind what we know
about what Pat Fitzgerald has said to players are just things that are in
the public sphere. We don`t know what he`s saying to players behind closed
doors. And anybody who believes that he is just expressing his opinion,
which he is allowed to do legally, and not engaging in threats or concepts
of retaliation, which he is not allowed to do, I mean people who believe in
that probably also believe that Rand Paul is sincere in his desire for
racial reconciliation. It`s absolute garbage. And the thing about Pat
Fitzgerald - we have to keep in mind about Pat Fitzgerald as well, is that
he`s someone who played at Northwestern in the mid-1990s. His leg was
broken as a player for Northwestern and when Kain Colter first started his
union campaign, he sent out a tweet that was supportive of Kain Colter. So
the labor lawyers who I spoke to said that it`s pretty clear that Pat
Fitzgerald has been coached to walk this fine line. But what we also have
to remember, Jonathan, is that a football team is not a consensus-based
organization. It is very top down, it is very autocratic, and any idea
that players feel like that they have freedom to express themselves in the
coach-player relationship is an absolute myth.
CAPEHART: Dave, I mean as you wrote, it`s also almost like a military
operation. I just want to point something out. Our colleagues at "UP"
with Steve Kornacki received this email from Northwestern linebacker Collin
Ellis. Here`s what he said, "Northwestern has treated me as family from
day one and I truly believe they have had my best interest in mind. This
idea was founded on creating change within the NCAA and it has turned into
a Northwestern versus Northwestern issue. While the union could serve as a
blueprint for other schools to adopt and possibly create change within the
NCAA, I was personally not willing to risk all that I have at Northwestern
for the potential for change within the NCAA." So, David, does it matter
what happens with the Northwestern players vote? Whenever we find out its
results or is change inevitable at this point?
ZIRIN: Change is absolutely inevitable. The horse is out of the barn.
The water is out of the bottle. Because right now according to federal
law, if you go to a private college, you can try to organize a union. You
are a worker and a coach is your boss. Which is, frankly, about
recognizing the reality in front of our face. It`s like saying the sky is
blue. I mean I have to tell you, Jonathan, I was on a sports radio show
and the host is one of those, not to stereotype, but one of those meathead
guys who`s like, well, you know, what have you and eating raw meat and he
said to me, you know my opinion on this has shifted dramatically in the
last six years because I used to say, no, they should be happy just to play
football and get a chance to get a scholarship. But I can`t look at these
$6 billion TV contracts anymore and say that this is anything but a
business. And what`s also out of the barn, Jonathan, is, yes, the NLRB
ruling only pertains to private colleges, but right now there`s legislation
in Connecticut and legislation in Ohio to try to get this to apply to
public universities as well. So this is not going anywhere. No matter the
results of the vote.
CAPEHART: Let me read you something that Northwestern VP Alan Cubbage also
said. This, to "Salon" in an interview. Asked what concretely would be
worse under an employee relationship, Cubbage answered only, again, "we
believe that they are students. It would change it from an academic
relationship to an employee-employer relationship. So, Dave, given how
much money the NCAA pulls in and doesn`t share with its players, is that a
bad thing? What are the potential pitfalls, quickly?
ZIRIN: Let`s just say, if it was an academic relationship, why aren`t they
getting class credit for playing football? Why are they spending 60 hours
a week doing it? Why are they limited in terms of the classes they can take
because of the insane travel schedules that exist for the 21st century
athlete? There needs to be a recognition of the reality. That doesn`t
mean they don`t go to class anymore, but it does mean that they get a seat
at the table to talk about the terms of their work.
CAPEHART: Dave Zirin in Chicago, always good talking sports with you,
Coming up, President Obama`s risky reform and the Supreme Court rules on
CAPEHART: There`s something about the word "Supreme" in the title Supreme
Court that makes you think well, that`s it, I mean, done, final. When that
court rules, discussion over. The Supreme Court said it. I mean that`s
what made the Roberts ruling on Obamacare so important. Yes, the political
debate continues, but we now know Obamacare is the law of the land. Simply
put, that is how it works on the national level and for the most part on
the state level too. The state Supreme Court is the final say. Except in
Oklahoma. Check out this line from the Oklahoma Supreme Court`s own
website. Unlike most states, Oklahoma has two courts of last resort. The
Supreme Court determines all issues of a civil nature and the Oklahoma
Court of Criminal Appeals decides all criminal matters. And this week that
rare Oklahoma system, those two courts of last resort created a lot of
confusion for the fate of these two men. Clayton Lockett and Charles
Warner. Both are death row inmates scheduled for execution and both of
these men requested a delay of those executions in part over the question
of where their execution drugs came from. The appeal first went to the
state supreme court, which basically said this isn`t our thing and
transferred the request over to the court of criminal appeals. And the
court of criminal appeals said no, not our thing. That court basically
said, "We can`t grant a delay of the execution because the inmates` pending
case about drug secrecy is a civil case with the Supreme Court, not a
criminal case in our court. So a few days later the state`s Supreme Court
stepped back in and went ahead and did what the other court said no to.
Ordered a delay of the executions until the appeal could be resolved.
It was the first time the Oklahoma Supreme Court had ever blocked an
execution, and that set people off. Oklahoma Governor Mary Fallin issued
the executive order to stay the executions, but under protest, writing that
the Supreme Court was, quote, "outside the constitutional authority of that
body." One state representative even introduced a resolution calling for
the impeachment of the five justices who voted for the delay. Then on
Wednesday, the state Supreme Court ruled that in fact the state does have
the right to keep the source of lethal injection drugs secret, lifting the
stay and effectively declaring the executions could move forward. In a
concurring opinion, State Justice Steven Taylor called the inmates` appeal
frivolous and said that if they were to be hanged, they would have no right
to know whether it be by cotton or nylon rope. Of course the combination
of drugs that make up the lethal injection are not rope. In fact they are
a combination of drugs that are experimental, never before used in the
quantities that Oklahoma plans to use, leaving serious questions about
whether the executions will comport with the Eighth Amendment`s ban on
cruel and unusual suffering. The executions are now set for Tuesday.
Oklahoma`s first double execution in nearly 80 years.
Up next, have we seen the beginning of the end of affirmative action? Just
when did the Supreme Court do - just what did the Supreme Court do this
week? It may be more complicated than we first thought.
CAPEHART: Huge news this week out of the United States Supreme Court. In
a decision of six to two, the justices upheld the state of Michigan`s ban
on affirmative action in higher education. The ban began in 2006 when
Michigan residents voted to prohibit public colleges and universities from
considering race in admissions decision. 58 percent of voters agreed to
add the ban to Michigan`s state constitution. The amendment specifically
bars colleges from granting preferential treatment on the basis of race or
ethnicity. The ban was challenged as unconstitutional. Opponents argued
that putting the ban into the state constitution violated equal protection
under the law because it is much harder to change the state constitution
than to change a law adopted by the legislature or to change an individual
school policy. But on Tuesday, the Supreme Court ruled that Michigan
voters had every right to enact that ban and enshrine it in their
Justice Anthony Kennedy wrote "This case is not about how the debate about
racial preferences should be resolved, it is about who may resolve it.
Deliberative debate on sensitive issues such as racial preferences all too
often may shade into rancor, but that does not justify removing certain
court-determined issues from the voters` reach: democracy does not presume
that some subjects are either too divisive or too profound for public
debate. Justice Sonia Sotomayor wrote a withering 58-page dissent and read
part of it from the bench, a rare step. Justices take the emphasize just
how very much they disagree with the majority opinion. Sotomayor wrote,
"The constitution does not protect racial minorities from political defeat,
but neither does it give the majority free rein to erect selective barriers
against racial minorities. The political process doctrine ensures that the
majority when it wins does so without rigging the rules of the game to
ensure its success.
Today, the court discards that doctrine without good reason. In the wake
of that, the decision, the activist group that challenged the Michigan law
vowed to continue fighting with protests and sit-ins and held a small rally
at University of Michigan Ann Arbor on Thursday. University officials said
they would work to find other ways to increase diversity on campus - and
even Attorney General Eric Holder weighed in at a Justice Department event
(BEGIN VIDEO CLIP)
ERIC HOLDER, U.S. ATTORNEY GENERAL: Justice Sonia Sotomayor said just
yesterday in her courageous and very personal dissent in the Michigan
college admissions case, we ought not, and I quote, "wish away rather than
confront the racial inequality that exists in our society."
CAPEHART: After the Supreme Court`s ruling, some opponents of affirmative
action saw an opportunity. One state senator from Wisconsin, who is
running for U.S. Congress, Glenn Grothman, quickly moved to reintroduce
legislation banning affirmative action policies in Wisconsin saying, quote,
"the average person does not realize how extensive race and gender
preferences are in our society." Here to break down this ruling for us,
exactly what it said and what it could mean for affirmative action across
the country is Akhil Reed Amar, professor of law and political science at
Yale University. Professor, thank you for being here.
AKHIL REED AMAR, LAW AND POLITCAL SCIENCE PROF., YALE UNIVERSITY: Thanks.
CAPEHART: So what happened here? What did the court rule?
AMAR: Well, one thing that we heard is that it was a six to two vote, and
so just do the math. That means this one actually split the liberals.
Justice Sotomayor joined by Justice Ginsburg was in the dissent, but
Stephen Breyer, appointed to the court by Bill Clinton, actually in effect,
agreed with the result. And it`s a complicated case. Actually it`s quite
personal for me. I was born in Ann Arbor, my parents met at the University
of Michigan, but it`s complicated because there`s some old cases from the
Warren court that could be read very broadly to support justice Sotomayor`s
position, but you could also read them more narrowly and that`s what the
majority chose to do. And it chose to do that, Justice Breyer argued in
his opinion partly out of respect for the democratic process. Affirmative
action is permissible, but it`s not required. And so the people of the
states get to decide just how much affirmative action they want to do.
That was basically Breyer`s argument and it`s a version of Justice
Kennedy`s argument for the plurality.
CAPEHART: Well, speaking of Justice Kennedy, here`s what he said the
decision is not about. Justice Kennedy wrote "Before the court addresses
the question presented, it is important to note what this case is not
about. It is not about the constitutionality or the merits of race
conscious admissions policies in higher education."
AMAR: Right. And there were two other justices, you know, there are a lot
of moving parts to this. This was a really fractured ruling. Justice
Kagan, Elena Kagan, the newest appointee to the court, recused herself
presumably because she was involved as solicitor general in the case. So
we`ve talked about Kennedy`s opinion, who says this really isn`t about
affirmative action, it`s about Michigan`s -- the people of Michigan`s right
to decide one way or the other. Justice Sotomayor thinks it`s very much
about affirmative action. Here`s what two other justices said. Justices
Scalia and Thomas. They said affirmative action is kind of always
unconstitutional taking race into account except to remedy an individual
violation that an individual suffered. So, all Michigan is doing is
restating what they think the Constitution actually, you know, requires,
which is no affirmative action anywhere. Justice Kennedy didn`t say that.
Justice - Chief Justice Roberts and Alito didn`t say that. They said
affirmative action in certain situations may be permissible, we are not
going to (INAUDIBLE), but it`s a choice for each state.
CAPEHART: Now, you mentioned Justice Sotomayor and her dissent. And she
wrote very personally about this. I`m only going to read part of what she
said because we`re going to talk more about this later. But she said, "and
race matters for reasons that really are only skin deep, that cannot be
discussed any other way and that cannot be wished away." And we have the
fuller -- the quote there, but what I wanted to ask you is, is there a
place for that sentiment in Supreme Court jurisprudence?
AMAR: Well, she`s -- these are difficult cases. People bring their own
life experience and perspective to them. There was a kind of honesty to
her point of view. Chief Justice Roberts took her on very directly. He
wrote separately and he said, listen, even if you like affirmative action,
you`re not saying it`s actually required in this situation. You`re not
saying that the University of Michigan itself couldn`t have done away with
affirmative action. So if the University of Michigan itself can do away
with affirmative action, why can`t the people of Michigan more generally do
away with affirmative action?
CAPEHART: Professor, stay with us. We are going to talk much more about
this, stay with us at home, when we come back, I have more voices to bring
into this discussion and we`ll take a closer look at majority rule when it
comes to the rights of minorities. Justice Sonia Sotomayor had a few
things to say about it. That`s coming up next.
(BEGIN VIDEO CLIP)
JUSTICE SONIA SOTOMAYOR: When I call myself an affirmative action baby,
I`m talking about the essence of what affirmative action was when it
UNIDENTIFIED FEMALE: Is there still a need for it today?
SOTOMAYOR: There`s still a need for people to be sensitive to the fact
that they feel more comfortable with people who look like them.
(END VIDEO CLIP)
CAPEHART: In the Michigan affirmative action case decided by the Supreme
Court this week, a central question was this. In a democracy, when can the
majority make decisions about the rights of minorities? Justice Sonia
Sotomayor in her impassioned dissent wrote, quote, "We are fortunate to
live in a democratic society, but without checks, democratically approved
legislation can oppress minority groups. For that reason our Constitution
places limits on what a majority of the people may do. This case
implicates one such limit, the guarantee of equal protection of the laws."
Still with me is Akhil Reed Amar, professor from Yale University. Joining
the table now is Halley Potter, policy associate at the Century Foundation,
Judith Browne Dianis, co-director of the Advancement Project and Raul
Reyes, an attorney and columnist at "USA Today." Welcome all. Judith and
everyone jumping on this questions, actually, but Judith, I want to start
with you. When and how is the majority allowed to limit the rights of
minorities? And is that really what`s happening with affirmative action in
- Michigan affirmative action?
JUDITH BROWNE-DIANIS, ADVANCEMENT PROJECT: Right. What`s at issue in
Michigan is that instead of going through the traditional process of the
board of trustees or governors and the administration at the university,
they set up a new rule. And the new rule went around that process, that
political process, and instead set it up through a ballot initiative. And
the concern is that the equal protection clause protects minorities from
mob rule basically. You know, it`s like - and what`s really troubling
about this is that this really is taking a swipe at equal protection.
Equal protection -- I mean Justice Scalia, to actually say that the equal
protection clause is not about groups, but it`s about individuals, perhaps
he needs to even just go watch the movie "Lincoln"
BROWNE-DIANIS: To understand why we have an Equal Protection Act and who
it does protect.
CAPEHART: Professor Amar, what do you think of that question? When and
how is the majority allowed to limit the rights of the minority?
AMAR: Well, remember the equal protection clause itself was voted on and
it came out of a political process. Scalia and Thomas would say all
Michigan did is basically reiterate the basic idea of equal protection. No
discrimination on grounds of race ever. Now, the court majority doesn`t
embrace that extreme position. The court majority to repeat actually says
affirmative action is basically a policy question. You can have it in
certain limited contexts and basically it`s up to the people of Michigan to
decide that. Personally, I think Justice Breyer, remember he`s a liberal
too, this one split the liberals, said in this close question, tie goes to
democracy. The people of Michigan can do it one way. The people of
Connecticut can do it another way. Let`s see actually what might work the
best, at least constitutionally.
BROWNE-DIANIS: But the problem is when race was involved there has to be a
check on it because of racial minorities.
AMAR: Oh, oh, here`s one final thing, though, that the majority did
emphasize again and again. There was no history of past proved racial
discrimination in Michigan, so what we`re not dealing with here, which we
were in some of these earlier cases was remedies for proved racial
violations. So those other cases were limiting the ability of minorities
to get remedies for intentional racial discrimination and Kennedy says we
don`t have that here.
CAPEHART: Raul, you wanted to jump in.
RAUL REYES: Right. I think to Judith`s point, that we`re talking here is
that one of the court`s central roles is to be the guardian and to ensure
that there`s fairness and justice for all people and to guard against the
majority rule. And we only have to look at something like Prop 8 in
California. That was majority rule and that was, you know, ultimately
overturned as unconstitutional. One thing that struck me about Sonia
Sotomayor`s defense, as you`re talking about it, it was a traditional
defense in the sense that it relied on precedent. She went back to the
idea that the court -- the 14th Amendment guaranteed equal protection for
all people and then she did present some of her life experience which, by
the way, Scalia and Thomas have done in the past without resulting in so
CAPEHART: I mean you brought up Prop 8, which is something that came to
mind when I read the stories on the ruling. I mean Prop 8 was an instance
when the majority voted to ban same-sex marriage in California and yet last
year, the Supreme Court came in, they didn`t -- they ruled on standing, but
as a result, they allowed marriages to go forward, and basically
invalidating Prop 8? So, what`s the difference between these --
AMAR: And remember, actually, Justice Kennedy in an earlier decision
struck down a Colorado ordinance that discriminated against gay folks. So
here`s what he says is the difference. This Michigan proposition does not
discriminate on grounds of race or sex or sexual orientation.
BROWNE-DIANIS: But that`s not true --
AMAR: Whereas Prop 8 actually did. It said straight people could get
married and gay people can`t. This ordinance, he says, doesn`t say that at
all. It doesn`t treat formally -- this is actually lawyers take this
seriously, it doesn`t treat formally --
BROWNE-DIANIS: Yes, and I`m a lawyer -- .
AMAR: white people.
BROWNE-DIANIS: And I take it seriously because it does treat minorities
differently. It treats minorities differently because they have to go
through getting a constitutional amendment to have a say in the democracy.
And if you look - I mean - and - I mean and reality is that a
constitutional amendment is a very difficult thing to do. And part of the
problem with what we are seeing is when the majority doesn`t get its way in
the legislature, we`re now seeing these ballot issues where a lot of money
goes in at the minority --
But this case found that there were problems --
AMAR: But here`s the key point. Here`s what Kennedy says. Minorities
themselves, ourselves, disagree even about affirmative action. So it`s not
the case and it`s patronizing and stereotyping the majority argues to
assume that all minorities believe in affirmative action.
CAPEHART: Halley, jump in here. What`s your view - take on all this?
HALLEY POTTER, CENTURY FOUNDATION: I think ideally colleges would be able
to look at race and socioeconomic status, but I think the idea that this is
a policy question is interesting. Because it`s not a settled question
what`s the best way to take disadvantage into account in college
admissions. And if you look at other strategies, there are a lot of ways
that looking at socioeconomic diversity or geographic diversity --
CAPEHART: Which we are going to talk --
POTTER: -- can affect racial diversity as well. So from a pragmatic
perspective, I think there`s still a question can we achieve these goals
even without race explicitly being considered.
CAPEHART: Well, I`m glad you brought that up, because Justice Scalia in -
well, here`s what he wrote. And as Justice Harlan observed over a century
ago, our Constitution is color blind and neither knows nor tolerates
classism on citizens. The people of Michigan wish the same for their
governing charter. It would be shameful for us to stand in their way."
So, do we - given what he said, do we still need to remedy racial
discrimination in education?
POTTER: Oh, we absolutely do. And I don`t think that socioeconomic status
perfectly maps onto the same issues that you can address with race. But
socioeconomic status is particularly if it`s considered in really
sophisticated ways can get at a lot of those disadvantages. And I think
colleges are only beginning to tap into the possibilities of that. And we
could be much more sophisticated in terms of really looking at not just
income, but what if we also looked at family`s wealth and take into factor
the neighborhood poverty that is affecting people. You`ll get a lot closer
to taking in advantage of being able to provide a leg up for disadvantaged
CAPEHART: We`re going to be talking about this I think in the next block,
CAPEHART: Hold the conversation. Justice Sotomayor is not the first to
express an impassioned dissent over an affirmative action ruling. In 1978
the court ruled that colleges can consider race in admissions, but cannot
use a quota system to ensure minority students get a seat.
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: There were four dissenters, the angriest, the court`s
single black, Justice Marshall. He called this a turning point, in which
meaningful equality for blacks would remain a distant dream, and he said he
doubted there was a computer capable of determining the number of people
and institutions that might be hurt by today`s decision.
(END VIDEO CLIP)
CAPEHART: Michigan was not the first state to ban affirmative action in
college admissions, the first was California where voters decided in 1996
to ban the use of race-based preferences at public colleges. And since
then the percentage of black students at flagship University of California
schools has dropped. At UCLA, only 3.8 percent of undergraduate students
are African-American. At Berkeley, 3 percent. The result, according to
some students, is a hostile, isolating atmosphere. To draw attention to
that argument, members of UCLA`s black law students association recently
published a video, in which students of color describe their experiences at
the law school. Where just 33 out of about 1100 students are African-
(BEGIN VIDEO CLIP)
ASIA WOMACK: I`m in a room of 80 people just sitting by myself. And
everywhere I look, no one can help me. No one can jump in. No one can at
least acknowledge what I`m saying has any truth.
(END VIDEO CLIP)
CAPEHART: Joining us now from Los Angeles is Gerloni Cotton and Asia
Womack who you just saw in that clip. They are the current co-chairs of
the Black Law Students Association at UCLA. Thanks so much for being here,
ASIA WOMACK, UCLA SCHOOL OF LAW: Thank you for having us.
CAPEHART: So, Gerloni, I`ll start with you. So, as we debate affirmative
action, it`s important for us to think of how diversity or the lack thereof
affects actual students. So, how do you see a lack of diversity as hurting
you and fellow students of color?
GERLONI COTTON, UCLA SCHOOL OF LAW: I think it has tremendous effects on
my ability to learn in class. It`s not normal. It`s not normal conditions
to go to school under really. If you think about going and being the only
black person in a class of over 100 students, it really affects your
ability to learn. There`s the situation where you feel hypervisible, but
also invisible. You feel hypervisible because in a lot of ways you`re
tokenized. When issues of race come up in a classroom, which they do often
because it`s the law, you often feel made -- you`re made to feel like you
have to really comment on those issues. But then you feel invisible at the
same time because the dominant culture is so different from what you feel,
so I really don`t feel like I see myself reflected a lot of time in the
students, in the faculty and in the way that I think and I experience life.
I`m often the only black student in classrooms. In my one-L section I was
one of two black students and I was the only black woman. So, when issues
of genders came up, when issues of race came up, I often felt like people
looked to me to talk, but then at one point got tired of me talking so much
about those issues. And I felt like if there were more students of color,
more black women, more black people in the classroom people could have seen
a variety of experiences, first of all, but also --
COTTON: I wouldn`t have had the burden of always feeling like I had to
CAPEHART: Right. Asia, let`s broaden this out and talk about all
students. How is this detrimental to all students, to white students?
WOMACK: Well, really the study of the law in particular has a lot to do
with what will happen in the future. So many of my classmates will go on
to be judges, prosecutors, and leaders in politics. And so when you lack a
foundation of really understanding issues from so many different points,
you are not able to go out into the world and really have effective change
that will really help the country. There are several prosecutors that I`m
sure if they were able to sit in a more diverse classroom, they would have
a different perspective on a lot of things that are happening now.
CAPEHART: Let`s bring the conversation here to the table. And Halley, I
ask you what are the benefits to a diverse student body and the detriments
of the homogeneous student body?
POTTER: Yeah, I think it`s an educational and socio-economic issue in the
country. So, it`s important to have a diverse student body, partly so that
you have a critical mass of students who are part of minority groups so
that there is this feeling of community and support and that students don`t
feel like they have to represent their group. And that`s also important
for all students there. That`s how you counter stereotypes by having
enough diversity that students see a variety of experiences within
different demographic groups. And this is also something that`s important
to encourage critical thinking for students. If you go to school with
people who have the same experience as you did, you`re not being challenged
in the same way to communicate and think about your ideas and really be
prepared to enter a diverse workforce.
CAPEHART: And you know, Raul and Judith, we`re talking about law school
here. So, how important is it that the next generation of lawyers and
politicians, that they`re diverse?
BROWNE-DIANIS: Well, first, I mean I just want to thank the people -- the
students at UCLA. I was the national chair of the National Black Law
Students Association when I was in law school, and I know how difficult it
is. I went to Columbia. I was one of 34 in my class, and I know that in -
- you know in, our profession, first year, you`re reading cases that are
about property and about the Constitution and always squarely fit a
discussion about race. And professors don`t often, you know, include you
in that conversation, but you have to bear the burden of it.
CAPEHART: Asia and Gerloni, I want to get the last question to you. And
since that video, what has been the reaction on campus to the video?
COTTON: There`s been a lot of negative backlash as well as people, of
course, coming out to support us. But on our actual campus there has been
a lot of negative backlash. We`ve had students receive hate mail in their
mailbox. A student who was in the video got a letter in her mailbox
telling her to, you know, stop being a sensitive "n" word. We had our
posters and flyers ripped down off of the board. I think the environment
at the school, which was very hostile before racially and isolating, it
continued but it intensified after the video because it like it brought up
all of the issues to the forefront. And we had a lot of pushback from
students who were not black students, but who had an opinion about whether
what we were saying was true, whether our experiences and the way we felt
was really accurate.
WOMACK: And it was an immediate backlash that was very similar to what we
experience in class, but more overt. And it really shows. Before Prop 209
was enacted, there were 46 black students in the first year class alone.
And now we`re there and they tell us that, you know, 11 is remarkable and
that we should feel good about that. These low numbers are not normal.
And what they do is they breed this environment where it`s OK to leave hate
mail or it`s OK to be harassed in the middle of school. Go ahead.
CAPEHART: Gerloni Cotton and Asia Womack in Los Angeles, thank you so much
for joining us this morning and thank you very much for doing that video
and taking a stand.
COTTON: Thank you for having us.
WOMACK: Thank you.
CAPEHART: Coming up, the challenge of creating diversity without
considering race. What will it mean for the future of affirmative action?
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: You know, the affirmative action is simple the process,
a step to include people who have been left out and left behind. To affirm
participation of all American citizens, not just African-Americans, but
whites, Latinos, Asian American, Native American and women.
CAPEHART: The legal grounds for race-based college admissions is getting
increasingly slippery with every Supreme Court decision. Think of last
year`s decision in Fisher versus the University of Texas at Austin, which
increased the judicial scrutiny race-based admissions programs have to
face. And so many schools are left grappling with the problem of how to
create a diverse student body without considering the race of their
students. And Halley, this is your area of study. What have schools been
doing to increase diversity without using traditional affirmative action?
POTTER: Yeah, the good news is we`ve seen a variety of strategies that
states faced with these bans having - already implemented and they have
been relatively successful in many cases at creating racial and ethnic
diversity. So, a lot of people have heard of the percent plans that they
have at Texas and Florida and California.
CAPEHART: That`s the ten percent?
POTTER: That`s right.
CAPEHART: The top ten percent?
POTTER: It`s taking top graduates from high schools throughout the state
so that`s sort of looking at geographic diversity. And how that can bring
along socio-economic and racial; diversity. They`re also really
sophisticated plans. The University of Colorado at Boulder has recently
implemented a socioeconomic affirmative action plan alongside their
existing race-based plan that actually looks at a number of different
socioeconomic factors for students and balances that with their
overachievement. So, how is their academic qualifications compared to
students of similar backgrounds who face those same educational obstacles.
CAPEHART: And Akhil, you were saying before that you deal with these
AMAR: Yeah. I`m the faculty director of admissions, actually.
CAPEHART: All the time.
AMAR: And when we actually believe in affirmative action, we believe in
racial affirmative action, and thank goodness you see that Justice Kennedy
didn`t use this case as an opportunity to say you can`t do it at all, which
is what Scalia and Thomas were saying. But we focus on whether you were
the first kid in your family to ever go to college or to ever go to
graduate school. So, we try to get a holistic sense. What`s so
interesting, just from a Yale Law School perspective, is, yes, two of our
graduates on the Supreme Court. You have three but Justice Sotomayor and
Justice Thomas both beneficiaries of affirmative action, as was I. You
know, when I got admitted, I`m assuming. And they have such different --
and they are both autobiographical and talking about their life experience,
and they have very different views. One thinks actually affirmative action
was bad for him and for the race and other thinks affirmative action is
REYES: One problem, though, like I agree, Halley that the top ten plan,
for example, in Texas, it`s a way of finding diversity through other means,
but the court is already chipping away at that. That was under assault in
the Fisher case last year was at the University of Texas, the ten percent
plan. And I think if you take, for instance, the decision of Michigan to
its logical -- to a practical conclusion, that the University of Michigan
may not take into account race when students apply, think of what college
students typically write about in their essays. Frequently, because they
are so young, they write about their identities. So it`s very common for
someone to write about, say, growing up in a biracial family, maybe growing
up as the only minority in a certain environment. So, does that mean that
these schools can no longer consider those types of applications? Whereas
other students are free to write about their full life experience.
Whatever their interests or the backgrounds are. Minority students are
CAPEHART: And on that note, thank you, Akhil Reed Amar and Halley Porter.
Judith and Raul are sticking around.
Coming up next, the Justice Department`s historic and risky move that could
change thousands of lives and Joe Beckhardt, author of the controversial
new book "Forcing the Spring" joins us live in the studio. More Nerdland
at the top of the hour.
CAPEHART: Welcome back. I`m Jonathan Capehart, in for Melissa Harris-
This week, President Obama took the wheel and began turning it away from
nearly three decades of U.S. policy on drug sentencing with this
Wednesday`s announcement from the Justice Department.
(BEGIN VIDEO CLIP)
JAMES COLE, DEPUTY ATTORNEY GENERAL: I`m pleased to announce a Department
of Justice initiative to encourage qualified federal inmates to petition to
have their sentences commuted or reduced by the president of the United
(END VIDEO CLIP)
CAPEHART: But pause with me for a moment, because in order to understand
the new direction in which the president is taking us, I need to take you
back to the moment another president set us along our current course.
This is October 27th, 1986, the day President Ronald Reagan signed a law
called the Anti-Drug Abuse Act. This law marked the first significant
piece of legislation to formalize America`s war on drugs and appropriated
$1.7 billion for new prisons, drug education and treatment. And that`s
$1.7 billion in 1986 money, so you know that`s a lot of money.
But the law`s most lasting legacy was the creation of a 100-1 sentencing
disparity between powder and crack cocaine. It meant despite the fact that
cocaine and crack are chromologically (ph) identical, it took 100 times
more cocaine than crack to trigger the same mandatory prison sentence. The
law also imposed mandatory minimum sentences that took sentencing decisions
out of the hand of judges and forced them to put low-level drug offenders
behind bars for years.
And today, 27 years later, we are still living with the consequences of
what that drug war has wrought -- an explosion in the federal prison
population from about 24,000 in 1980 to more than 200,000 by 2009, an
increase of more than 700 percent. By 2009, drug offenders comprised more
than half of the total population of federal inmates, many of whom were
subject to mandatory minimum sentences.
The new tough on crime policy shift was also accompanied by profound racial
inequities incarceration rates for drug crimes, despite comparable rates of
drug possession and sales African-Americans and Latinos are far more likely
than white Americans to become criminalized and to serve longer sentences
for drug offenses.
In 2010, President Obama began taking the first major deviation away from
the policies that created those disparities when he signed the Fair
Sentencing Act. That reduced the disparity in the amount of cocaine versus
crack required to trigger the mandatory minimum from 100-1 to 18-1, and it
eliminated the mandatory minimums for simple crack possession, which brings
me back to Wednesday`s announcement and the Obama administration`s sharp
turn to bring justice to the casualties to the war on drugs.
In what "The New York Times" called a symbolic break from the past, the
Justice Department has extended the opportunity for federal offenders to be
released from prison early if they meet a strict set of guidelines.
Now, it`s not going to be easy. The prison gates are by no means being
thrown open with convicts pouring out into the streets. It will be quite
hard for an inmate to secure early release. In order to move to the front
of the line for clemency consideration, inmates must have been in prison at
least 10 years and be serving a sentence that would be significantly
shorter under current laws.
They must be nonviolent, low-level offenders with no history of gang
affiliation, violation or criminal activity and have demonstrated good
behavior during their time in prison.
Every inmate will be notified in the coming week of the opportunity for
clemency and can request free legal help to prepare their application. And
although the Justice Department could not confirm how many would be
eligible, the new initiative could mean hundreds, possibly thousands who
were unfairly sentenced could finely finish repaying their debt to society.
Joining me now is Glenn Martin, president and founder of Just Leadership
USA, which aims to cut U.S. prison population in half by 2030. Dafna
Linzer, managing editor of MSNBC.com, who in her previous role in
"ProPublica" authored a crucial series on the Obama administration`s
clemency operation that led to notable change. Judith Browne-Dianis, co-
director of the Advancement Project, and Raul Reyes, columnist for "USA
They`re back at the table.
Glenn, I want to start with you.
This is a major announcement but it`s not like inmates will apply and be
released next week. From a practical standpoint, what`s it going to take
for this plan to be implemented and how long before we start seeing some,
if any, changes in the federal prison population?
GLENN MARTIN, JUST LEADERSHIP USA: Let me start by putting it in further
perspective. So, 40 years, $1 trillion, 40 million people arrested and
drugs are cheaper and more available than ever before. With the recidivism
rate in the federal system of two-thirds over three years, I can`t think of
any industry that would have such a failure rate and continue to operate,
except that we found a way to monetize misery through private prison. So,
let`s start and put in perspective.
Every time you read a criteria, what it takes for a person to know
eligible, we start with 200,000 people in the federal system just kept
shrinking and shrinking and shrinking. The fact that you have to serve 10
years and 10 years with a good disciplinary record? I mean, this is a
system that inherently about punishment. Mother Teresa would do ten years
and probably not come out with a disciplinary record.
CAPEHART: So, that`s incredible.
RAUL REYES, USA TODAY: That`s so true, because just think about it -- if
you`re someone put in prison for this type of crime, you are utterly
hopeless. You have truly nothing to lose.
So, like you said it`s almost the human condition that maybe you get
involved in violence or that it drives you to it. Also when we speak about
the war on drugs, it`s important -- you touched on it with the racial
disparities. It`s a war on drugs with an asterisk because it`s a war on
drugs for poor communities. It`s a war on drugs in communities of color.
It`s not a war on drugs -- it was not a war on drugs for the whole country.
JUDITH BROWNE-DIANIS, THE ADVANCEMENT PROJECT: A few important things
about this. One is that the president said in his State of the Union that
he was going to start to use the power of the pen. And so, it`s important
that he actually took this step.
But also important because it`s signaling all of the work that so many
folks like you, Glenn, have done and the ACLU, to move away from a
punishment nation, and also to make sure that we have these unlikely
allies, right, which in the Republican and GOP party which are really about
like the money part. They don`t want to keep putting out that money.
But for those of us who do civil rights work, it`s important because we
know who this hits the hardest. We know that communities of color are
over-policed, are over-arrested, are over-prosecuted and, therefore,
disproportionately in the system.
CAPEHART: You know, I`ve got -- we can`t have this conversation without
talking about just how risky this move is politically for the president.
And, you know, during the 1980s and the 1990s, a move like this would have
gotten the president just completely, you know, killed by the opposition.
Of course, we can`t talk about this until we take a look at the ad that
derailed Michael Dukakis` presidential campaign as a reminder of the
political consequences of supporting a policy to release inmates from
Let`s show that very famous ad.
(BEGIN VIDEO CLIP)
AD NARRATOR: Dukakis not only opposes death penalty. He allowed first
degree murders to have weekend passes from prison. One was Willie Horton,
who murdered a boy in a robbery, stabbing him 19 times. Despite a life
sentence, Horton received 10 weekend passes from prison. Horton fled,
kidnapped a young couple, stabbing the man and repeatedly raping his
Weekend prison passes, Dukakis on crime.
(END VIDEO CLIP)
CAPEHART: That killed Michael Dukakis in the presidential election. So
what`s changed since then?
DAFNA LINZER, MSNBC.COM: So, that was an incredibly effective ad that
everyone thinks about when they think about clemency, right? Except that,
you know, name me a person who has been pardoned by a president in the last
20 years other than Marc Rich, but none of you can.
Or name me a federal inmate whose sentence was commuted who went out and
committed a crime after they were finally released from very, very long
sentences. Nobody can.
And the fact is, the president I think in this case, you know, took many
steps, I think, along the way, starting in 2010 to kind of lay the
groundwork for a lot more bipartisan support to kind of mitigate some of
that political risk. I would say that the steps that they have taken now,
even though as you say the numbers will be very low for the number of
people who will really be eligible right at the beginning based on the
criteria, but this is the beginning criteria. That`s kind of the way I see
it. That doesn`t mean that the criteria can`t be broadened as the program
But I would tell you after having, you know, done enormous investigative
work on the pardons office, the people who the president and the attorney
general are interested in commuting, those are exactly the people that the
pardons office was working overtime to prevent their release.
You know --
CAPEHART: And on that point because I was going to ask you about that, any
reason to think that these folks will be more accurate and more efficient
this time around?
LINZER: I think absolutely. I think number one, the president coming out
and saying what he is in interested in seeing and being very public about
it I think already creates a kind of accountability.
Beyond that, I would also say bringing in federal public defenders and
members of the New York bar to help people process applications. That`s a
wide open door.
And more importantly, I think, getting rid of the pardon attorney as they
did this week was the most important thing that I have seen them do as far
as clemency goes in a long time, and that was an absolutely necessary step
to clean up that office and bring in a new pardon attorney who has spent
her career dedicated to helping the poor and feeding the hungry and
CAPEHART: Real fast, Glenn.
MARTIN: Sure. On the issue of partisanship, let`s not forget, it was
George Bush who talked about this issue in 2004 State of the Union Address,
where he recognized we had 700,000 people exiting our prison each year and
we needed to do something about that and push Congress to create the Second
Chance Act which has been every year since then.
CAPEHART: All right. Everybody, stay right there.
When we come back, he`s not a president but he played one on TV. Can he
persuade Congress to side with the real president on sentencing reform?
(BEGIN VIDEO CLIP)
MARTIN SHEEN, ACTOR: A basic principle of justice is that the punishment
should fit the crime. Mandatory minimums undermine that principle by
forcing judges to ignore individual circumstances.
(END VIDEO CLIP)
(BEGIN VIDEO CLIP)
SHEEN: It`s time for elected officials to focus on solutions like flexible
sentencing guidelines. Our goal must be a justice system that avoids
unnecessary incarceration and irresponsible spending.
Tell Congress to pass the Smarter Sentencing Act.
(END VIDEO CLIP)
CAPEHART: That was actor and activist Martin Sheen reprising his old role
as "The West Wing`s" president, Josiah Bartlett, to urge the real-life
Congress to do something about sentencing reform.
Now, given the current state of icy relations between the legislative and
executive branches, you might imagine Congress really would be more likely
to be in agreement with a fictional president than the current occupant of
the real West Wing.
But as it turns out, sentencing reform makes for some unusual political
alliances. Take a look at some of the senators supporting the Smarter
Sentencing Act you just heard President Bartlett talking about. That`s a
mix of R`s and D`s next to those names.
The Smarter Sentencing Act goes beyond the president`s clemency powers to
make what the "L.A. Times" has called the most far-reaching changes in
years to federal sentencing and parole guidelines. The bill sailed through
the Senate Judiciary Committee earlier this year and a similar bill is
currently in committee in the House, except the warm and fuzzy kumbaya
moment with the president on this policy ended this week when it came to
the politics, because no sooner had the president announced his effort to
fix the sentencing system than some members of Congress found reason to
On Thursday, "The Washington Post" reported on some legislators grumping
about the president flexing his executive muscle to push sentencing reform.
And the day before that, there was a Republican House Judiciary Committee
Chairman Bob Goodlatte lamenting what he called the president`s, quote,
"blatant disregard for our nation`s laws."
So, we`re back here with our panel. I want to ask a question that I should
have asked in the last block and that is the politics of what the president
is doing and the risk to the president and to Democrats.
I want to go to this Vincent Sheheen attack ad that`s playing. Let`s see
that if we can.
(BEGIN VIDEO CLIP)
AD NARRATOR: It`s a fact, trial lawyer Vincent Sheheen made money off
criminals, got a sex offender out of jail time, defended a child abuser and
represented others charged with violent acts -- threatening to kill,
punched in the face. Sheheen defended violent criminals who abused women.
(END VIDEO CLIP)
CAPEHART: I mean, that`s Willie Horton 2.0.
I mean, what do you think the political risks are of what the president is
doing? And that ad is pretty hard-hitting.
MARTIN: Yes, it is, except, you know, we have 40 years of, unfortunately,
creating criminal justice policy based on one-offs and we have to move away
from that. We have to recognize we have an entire system that`s not
If you`re conservative, guess what, big government, this is the second
biggest ticket item on anybody`s budget. If you care about families, if
you care about communities, if you have -- you know, if that`s your sort of
moral approach, then guess what? This destroys families, this destroys
So, it seems to me like over the last ten years this actually is the one
issue that`s had the most bipartisan support and we should continue in that
direction and not allow ads like this to derail it.
REYES: Jonathan, what strikes me when we hear some of these conservative
voices coming out against this is that so many of these conservatives
insist upon a literal reading of the Constitution. The president has these
clemency and pardon powers in Article 2, Section 2 of the Constitution.
It`s right there, that`s fully within his executive authority to do it.
But, you know, there is a concern conservative argument to be made on
behalf of clemency, because when we look at Texas, where they have cut
their prison population with concurrent rights in crimes, and they have
saved millions. So that`s why we`re starting to see some of the new wave,
the 2016 candidates like Rand Paul, potential 2016 candidates like Rand
Paul, Rick Perry, embracing this idea because from a fiscally conservative
viewpoint, it`s an attractive idea.
But the big wild card is the reflexive Republican opposition to anything
that President Obama likes.
BROWNE-DIANIS: Right, exactly. I think Republicans in congress need to
get beyond the fact that they hate President Obama and perhaps read their
local newspapers, because in the states, we`re seeing major reform. And
Congress just doesn`t want to go along because they don`t want to go along
with the president`s agenda.
LINZER: And you know what, where governors can pardon, they do. They
actually use their clemency power all the time. Americans are used to the
idea of people being pardoned and having their sentences commuted.
This is the president`s only unfettered constitutional power that he has.
He uses it very seldom. And I think in this case the president has the
authority to release anybody he wants from prison on any day. And really
with the stroke of a pen, he could really change sort of the number of
people who are still serving, who are still stuck serving overly long
sentences they wouldn`t have had they been convicted today.
CAPEHART: Now, you know, what`s coming out of the Republican Party is, you
know, sort of makes me speechless because they`re actually, as you just
said, this is a bipartisan effort that`s happening. None other than Rand
Paul in New Hampshire, I believe a few weeks ago, had something rather
interesting to say. Let`s roll that.
(BEGIN VIDEO CLIP)
SEN. RAND PAUL (R), KENTUCKY: The door is not going to open up to the
African-American community or the Hispanic community until we have
something to offer. If you look at the war on drugs, three out of four
people in prison are black or brown. But your kids and grandkids aren`t
perfect either. Police don`t come to your neighborhoods. You get a better
(END VIDEO CLIP)
CAPEHART: I mean that`s pretty remarkable, one, from Rand Paul. But two,
from a Republican who is considered to be a leading contender for the 2016
Republican presidential nomination.
Does his party want to hear this?
LINZER: You know, I think that -- I really think that Americans understand
that this country has been addicted to mass incarceration for a very long
time. Libertarians -- I mean, the Rand Paul thing is a perfect example.
This is where they come together.
You know what, I don`t see a lot of backlash from his party on this.
People listen to it and a lot of people agree. People are very, very tired
and would like very much I think to leave the `80s behind on the drug war.
REYES: The fact that conservatives are speaking about this, not just here
but also at CPAC, which is the gathering of the hardcore, you know,
faithful of the party, speaking about that issue. That`s -- I feel like
that`s a real sea change that we`re seeing on the conservative side, that
people are just recognizing that this policy has been so foolish, so
wasteful, as Rand Paul mentioned, it`s caused a lot of destruction in our
MARTIN: You know, crime is down. You know, that`s just the fact for
years. Crime is down, so it just makes sense.
Let`s follow the research, let`s follow what the research tells us works
and recognize that crime is down.
CAPEHART: Stay with us, because sentencing reform is just the beginning.
What happens to those former offenders when they come home? We`ll get into
that when we come back.
But, first, Rand Paul isn`t the only one speaking truths to the Republican
base. At a Rotary Club meeting in Ohio this week, House Speaker John
Boehner mocked his Republican colleagues over another tough issue,
(BEGIN VIDEO CLIP)
REP. JOHN BOEHNER (R-OH), SPEAKER OF THE HOUSE: Here`s the attitude, "Oh,
don`t make me do this. Oh, this is too hard."
(END VIDEO CLIP)
CAPEHART: The prisoners being offered the opportunity for early release
under the president`s clemency initiative will still be branded as former
felons once they return to society, which means they`ll still be facing the
same challenges in employment, housing, education and voting rights as any
other formerly incarcerated person. It`s why the plan to bring harsh
sentencing policies to an end is really just the beginning.
Deputy Attorney General James Cole acknowledged as much this week.
(BEGIN VIDEO CLIP)
COLE: The smart on crime initiative has a lot of features to it, one of
which is re-entry. And that starts both while people are incarcerated with
the programs that we have in place in the Bureau of Prisons, plus the
follow-up that`s being done after they come out. We have the attorney
general`s interagency re-entry council that involves multiple agencies
throughout the government because they`re so important to make sure that
once people get out, they can stay out and become productive members of
(END VIDEO CLIP)
CAPEHART: Now, Glenn, what the deputy attorney general says sounds very
good in a sound bite about multiple agencies working together on prisoner
re-entry, but is there really any there there?
MARTIN: Yes. No, I think we have to give credit to the attorney general
and our president for having this interagency re-entry council for almost
the entire time. There have been tangible results for people exiting the
criminal justice system.
As you know, Jonathan, I did six years in prison myself before I exited 13
years ago. I faced many of the barriers you just mentioned, employment,
housing, education, and so on.
The fact that it mattered is that Attorney General Holder a couple of years
ago categorized all of the collateral consequences on the federal level
over 35,000. Today, we can take stock of them, see where they exist, and
start to roll them back where they are not doing anything to increase
public safety, but our prison system was created at the intersection of
jobless ghettos and backlash to the civil rights era.
And if we`re going to end this criminal justice system then we need to
focus on how to remove these barriers so when people exit prison, they`re
not going into a virtual prison in the community.
BROWNE-DIANIS: We have to get away from punishment for a lifetime. That`s
really what we have had. On the area of voting rights, for example, in
Florida, we have over 1 million people who cannot vote due to felony
convictions. We`ve seen movement in Virginia where Advancement Project
works, with the governors, the past two governors and Governor McAuliffe
has added to the list of people who can get their rights restored
automatically those who were actually convicted of drug offenses.
So, finally we`re seeing some movement but there`s a lot of work to do.
REYES: The challenge is immense because the people who could potentially
be released have served a minimum of 10 years. So, you`re talking about
people who have literally been removed from society for at least a decade.
These are people who did not -- most likely did not have any type of stable
home or job life, or legal job life before and now, they`re going to be
back in the workforce and we already have a tight economy.
So, it`s going to be a really steep hill. But I think that`s the critical
part of this equation is giving them the support and the mechanisms to
succeed when they re-enter society.
CAPEHART: Well, you`re talking about the job force and I`m going to put
this map up that we have. This is a map of states that have adopted laws
to ban the "are you a felon" check box on job applications. Is that the
kind of meaningful reform that will make a real difference for former
felons, does anyone think?
MARTIN: You know, on the federal level, the Equal Employment Opportunity
Commission has actually even gone further than the ban the box initiative.
I think ban the box is great and was started by people who were formerly
incarcerated in San Francisco. I think that`s important to point out.
But the EEOC says to employees all across the country that you can`t have
blanket policies that deny a job based solely on a criminal record because
it has disproportionate racial impact and potentially violates Title VII of
the Civil Rights Act.
CAPEHART: Dafna, so, Republicans are backing this largely on ideological
and economic reasons. Small government, cut spending. But these are also
the same arguments that they`re using to cut the social safety net. You
know, TANF, you know, what I`m talking about.
So, if we`re not making serious policy decisions that will support people
once they get out of jail, could sentencing reform ultimately create more
problems than it solves, do you think?
LINZER: Yes, one of the people that the president -- whose sentences the
president commuted in December, Clarence Aaron, the president commuted his
sentence in December. He actually went home last week. He went through a
very long sort of re-entry program. He was in a halfway house -- you know,
with family support, job support, you know, community support, all in this
-- headed in this direction.
I think here you really do kind of need that extra -- that extra safety net
to help people, otherwise you are in this place. But I think also this is
the reason that so many more people are petitioning for pardons, because
they really want a clean record and a much fresher start after they get
BROWNE-DIANIS: At the end of the day, it will be cheaper to do that,
right, to provide these programs and re-entry program than to keep them
incarcerated year by year.
CAPEHART: Right. We should point out that one of the reasons Clarence
Aaron got to go home is because of Dafna Linzer.
Glenn, Dafna, Judith and Raul, thank you for joining us.
Coming up, a story that stems from the Supreme Court case about Proposition
8 that you have not heard anywhere else. It`s a kind of "guess who`s
coming to dinner" tale that will amaze you.
CAPEHART: Just when you thought you might have heard all the backwards,
misinformed, intolerant comments on race you could stand, think again.
It`s why my letter this week simply has to go to the man who wonders if the
Negro, as he calls African-Americans, might be better off as a slave rather
than living off of the government.
Dear Cliven Bundy, it`s me, Jonathan.
Cliven Bundy, congratulations, you`ve provided the nation with another
cringe-worthy moment in race.
But should we be surprised that you would provide such a moment? I mean
you`re already quite the rabble-rouser. According to the feds you have
been illegally grazing your herd on federal land since 1993, when the
Bureau of Land Management, acting under a court order, tried to seize some
of your herd. The next thing you know, you became a FOX News enabled hero
of the poor, put upon right wing. They gave you a platform to pop off
about government overreach and whatever else is rattling around in that
head of yours.
Then, for some reason, you decided -- and I`m not going to get into why --
but you decided to spout out on the plight of the Negro.
(BEGIN VIDEO CLIP)
CLIVEN BUNDY, NEVADA RANCHER: I want to tell you one more thing I know
about the Negro. In front of that government house, the door was usually
open and the older people and the kids, there was always at least a half a
dozen people sitting on the porch.
They didn`t have nothing to do. They didn`t have nothing for their kids to
do. They didn`t have nothing for their young girls to do.
And because they were basically on government subsidy, so now what do they
do? They abort their young children, they put their young men in jail
because they never learn how to pick cotton. And I`ve often wondered, were
they better off as slaves picking cotton, having family life and doing
things or are they better off under government subsidy?
They didn`t get no more freedom. They got less freedom.
(END VIDEO CLIP)
CAPEHART: They never learned to pick cotton? Right. Because nothing
engrains a work ethic like being hunched over in the hot sun, picking the
poppy fiber under the watchful eyes of a sadist.
Are they better off as slaves? Because working for free without liberty
and under threat of punishment for things like learning to read, marrying
or running away is the ideal.
They put their young men in jail? Yes, because structural racism,
disparities in sentencing and deck stocked against them played no role
whatsoever in life choices that landed them there.
Are they better off under government subsidy? This is rich. This is being
asked by the man who takes the ultimate government subsidy by having his
cattle roam over federal land and not pay for it.
Cliven, I have news for you. You are the one living off the government.
And to make matters worse, you double down on your remarks on Thursday.
You wondered this, first, on the "Peter Schiff Show".
(BEGIN AUDIO CLIP)
BUNDY: I`m wondering, are they happier now under this government subsidy
system than they were when they were slaves and they was able to have their
family structure together, and the chickens and a garden, and the people
have something to do? And so, in my mind, I`m wondering are they better
off being slaves in that sense or better off being slaves to the United
States government in the sense of a subsidy.
(END AUDIO CLIP)
CAPEHART: And then you did it again in your daily press conference.
(BEGIN VIDEO CLIP)
BUNDY: The question is, is are they slaves the way they are or where they
live, slaves to charity and government subsidized homes and are they slaves
when their daughters are having abortions and their sons are in the
prisons? I`m not saying that I thought they should be slaves or I`m not
saying they was better off one way or another. I was wondering whether
they were better off.
(END VIDEO CLIP)
CAPEHART: Wow, you sure are a curious one.
Well, wonder no more, Mr. Bundy, the answer is no, OK?
Let`s just be real clear: African-Americans were not better off during
slavery. If there is any upside to your blatantly racist and repugnant
remarks, it`s that you are now not only revealed to be a thief, but also a
bigot. And your bigotry has sent your supporters running for cover.
Both Senators Rand Paul of Kentucky and Dean Heller of Nevada abandoned you
on Thursday. Senator Heller, who had called your supporters patriots, at
least had the guts to say through his spokesperson that, quote, "He
completely disagrees with Mr. Bundy`s appalling and racist statements and
condemns them in the most strenuous way."
Cliven, you seem to take great joy in the supporters who flocked to your
ranch to help fend off government authorities and the conservative media
that gave you a megaphone and in the national politicians who sang your
praises, but I`d suggest you get real comfortable on that 160-acre ranch of
yours, because now that people see your true colors, it might get real
lonely, real fast.
CAPEHART: June 26th, 2013, was nothing short of huge of dates history will
recall for the movement for equality in this country. There is not just
one but rather two key decisions from the Supreme Court. The court struck
down a key part of the 1996 so-called Defense of Marriage Act which denied
federal benefits to gay couples married under state law and the court
cleared the way for same-sex marriage to move forward in California.
The images you are seeing are from outside the court when the news was
announced. At the same time, the crowds were celebrating. MSNBC`s Thomas
Roberts was reporting live and then this happened.
(BEGIN VIDEO CLIP)
THOMAS ROBERTS, MSNBC ANCHOR: I think I see Chad Griffin from the HRC
talking on the telephone, which I believe is with President Obama. Chad is
UNIDENTIFIED MALE: The president is on the line from Air Force One.
ROBERTS: President Obama.
UNIDENTIFIED MALE: Go ahead.
UNIDENTIFIED FEMALE: Hello, Mr. President, this is Kris Perry.
UNIDENTIFIED FEMALE: And Sandy Stier, we thank you so much for your
BARACK OBAMA, PRESIDENT OF THE UNITED STATES: We are real proud of you
guys and we`re so glad that in California and a growing number of states
around the country because of your leadership, people are getting the equal
rights. So you guys should be very proud of today and your courage, you
are helping out a whole lot of people everywhere.
(END VIDEO CLIP)
CAPEHART: The man holding the phone in that clip is Chad Griffin from the
Human Rights Campaign. His efforts are part of the focus of a new book
called "Forcing the Spring" by "New York Times" investigative journalist Jo
Becker here with me in studio.
Also with us are the two women you saw on the phone with the president,
Kris Perry and Sandy Stier. They were two of the four plaintiffs in the
Prop 8 case that pushed for same-sex marriage rights in the state of
Also with us for the first time on television, the daughter of the attorney
who argued before the Supreme Court for Prop 8 and, therefore, against
allowing same-sex marriage in the state of California, Ashley Lininger.
Thank you all for being here. I`m very happy that you guys were all able
to get here.
Jo, I need to start with you. The elephant in the room, the criticism that
you`ve received about your book. Let me read this quote from Andrew
Sullivan, which I will just say right up front because I`ve written about
it, I do not agree.
"Is Becker even aware of the history of the struggle at all? Throughout
the 1990s, marriage equality had roiled the political landscape, dominated
the national debate at times, reframed and rebranded the entire gay
movement, achieved intellectual heft and key legal breakthroughs such as
the landmark Hawaii case that vaulted the entire subject from an idea to a
JO BECKER, AUTHOR, "FORCING THE SPRING": This is one criticism of a book
any write. I wrote about one chapter, a really, gripping amazing chapter.
I was fortunate enough to be with Chris and Sandy for four and a half years
and get to know Ashley. And it`s been -- you know, it`s been quite a ride.
CAPEHART: Let`s talk about what`s actually -- what`s in the book. Ashley,
you met Chris and Sandy for the first time this morning. You all had
ASHLEY LININGER, STEP-DAUGHTER OF PROP 8 ATTORNEY: Yes.
CAPEHART: And during the course of the arguments to ban same-sex marriage
you proposed to your partner.
LININGER: I did.
CAPEHART: And what was it like for you to know that your stepfather was
arguing against marriage equality? What was his reaction and were you
worried it could impact the case?
LININGER: That definitely came into play, that question of what to do with
everything that was going on and the information that he had so there was
definitely a question as to whether that would impact, but the general tone
was happiness. The story Jo tells in her book is accurate and fair and
respectful of our relationship, my father and I.
CAPEHART: Kris, you had an interaction with Chuck Cooper after the
arguments. Describe what happened.
KRIS PERRY, CA PROP 8 LEAD PLAINTIFF: Well, as you know, that day was a
very big day and we were excited to be at the Supreme Court arguing for a
constitutional -- or constitutional protection for equal right to marriage.
Sandy and I had sat together many years and watched Chuck Cooper argue the
other side of this case and wondered if his heart was really in it and
didn`t know what might be causing some of those, you know, I guess, a
little bit of ambivalence in some way.
What was really interesting at the end of the argument was he and I walked
right into each other on the way out of the Supreme Court and he came over
to me and grabbed my hand and shook it and said I really appreciate
everything you`re doing. And he seemed very genuine.
And it was one of those moments where you realize the system is made for
people to argue different sides of an issue. At the end of that, we walk
away and let the justices determine what`s right for everyone else and
that`s what we did.
CAPEHART: But that wasn`t the end of it, because what`s not in Jo`s book
is that as recently as April 3rd of this year, this month, something
happened. Sandy, I want to talk about this dinner invitation that you got
from Ashley`s parents, from Charles and Debbie Cooper. What was that like?
Breaking bread with the man who wanted to deny you the right to marry?
SANDY STIER, CA PROP 8 LEAD PLAINTIFF: We had a lovely time meeting Chuck
and Debbie Cooper and we were so thrilled to be invited into their home to
talk about the experience that they have had as parents. One thing that
Kris and I really talked about during the trial was our life as parents and
really how very --
CAPEHART: You have four children, right?
STIER: We have four children. Four young adult boys actually. And how
very important it is to support families and to support gay parents, to
support children, whoever they may be. We were so pleased to hear that
Chuck and Debbie had warmly welcomed Ashley`s fiancee, Casey, in their
family, were proud to be planning that wedding, and their love is so clear
and their dedication to their daughter and that`s what it`s always been all
about for us -- changing hearts and minds. If we had anything to do with
helping change a heart and a mind, we`re just so happy that we could do
CAPEHART: This was a long dinner, cathartic dinner from what I`m told and
clearly a fruitful dinner.
CAPEHART: So, Jo, these personal stories, this is what you were getting at
in your book, the personal side of marriage equality. And that`s certainly
happened learning more about Kris and Sandy and Ashley`s upcoming wedding.
How else do you hope the book impacts the fight?
STIER: Yes -- I mean, look, the trial itself, which is half the book
almost, was an incredible experience. It was an incredible experience for
anybody sitting through it. It`s an educational experience. But, you
know, what was interesting is it really impacted, you know, Ashley`s dad.
LININGER: My world. I mean, Kris and Sandy and watching them in trial
was, I think, really what made coming out to Chuck fairly easy because they
saw these two pulled together, wonderful, long-standing, committed women.
I just think it gave this really positive view.
CAPEHART: But you give them a lot of credit for softening your father`s
view, but -- stance, but don`t you think your coming out played a role in
his coming around?
LININGER: Absolutely. The evolution continuing. He`s just been amazing,
he really has. It`s a great story, and I`m lucky and I hope that it helps
anybody who reads it.
CAPEHART: And, Casey -- and I should point out that Casey is here but I
guess she`s a little camera shy. Everyone, hang on for me. We need to
take a quick break but we`ll come right back with all of you after this.
CAPEHART: And we`re back.
Sitting here talking with Ashley Lininger, Jo Becker, Sandy Stier, Kris
Ashley, I want to come to you because as we talked about at the beginning
of the segment, there`s been a lot of controversy about Joe`s book. And I
understand you -- what do you have to say? What do you make of the
LININGER: You know, I`m kind of on the newer end of the revolution that
has been happening and is still happening, but I think the book is a great
step. I don`t necessarily understand anybody who has a problem with the
visibility because that`s the point and the courageous story of the people
in this book whom I`m sitting with, part of them, I just think it`s
something that`s good to be heard, to get out there, to move forward
CAPEHART: What do you guys make of the controversy? I mean, this is your
story in here. And to have, you know, people within the community fighting
over what`s in and what`s not in this book must have some impact on you.
PERRY: It does. One of the things that happened in court, and this
happened in front of Chuck Cooper, is that I testified to the fact that by
having lived as an out lesbian and felt discriminated against, I felt like
as a human being I had not been able to reach my full potential than if I
had not lived in a state or a world where people like me were excluded from
important institutions like marriage. I might have become someone entirely
different and I might have been able to be a more productive and happy
And what was really important for me when I read the book and for the first
time read what Chuck Cooper was thinking and what he was saying to his wife
PERRY: We had no idea that it had impacted him at all. And what I
remembered thinking when I finally saw that was the whole point for Sandy
and I to be plaintiffs in this case was to speak directly to Chuck Cooper
and other parents like him. That if you find yourself in a situation where
you have a gay or lesbian child, you must accept and embrace them. That is
the point of all this.
It wasn`t to speak to our side. It wasn`t to speak to the LBGT community.
It was speak to people who are undecided, or unclear as to why this is
important for families and communities. We see all the time in our kids,
friendship circles, when those kids come out, they have to have a place to
go and it has to be home, it has to be safe there and their friend`s hopes.
BECKER: What an amazing thing, you know? Chuck told me that he was
watching your wedding on TV and he said at a deeply personal level he
couldn`t help but rejoice in their happiness. I really do think that`s why
this country is changing, because people get to know someone that`s their
friend or -- plaintiffs in a case that you`ve spent 4 1/2 years on.
And you get to know them and you want for them what you have for yourself.
I think that`s why you have seen the needle move so much on this issue.
CAPEHART: And the needle has moved a lot. I mean, are you amazed at just
how quickly public opinion has changed on the issue of marriage equality?
LININGER: From the start of all this five years ago when you all started
down this road, we had two states. Now, we`re 18 I believe.
LININGER: Seventeen and counting.
CAPEHART: District of Columbia.
LININGER: Yes. I think it`s really picking up steam. I think we`re
getting a really positive reaction.
STIER: I think when the public sees that there is no harm to them, to
their families, to their communities, by having us join in the privilege
and the honor of being married, it`s all about family. And the more we can
get that information out, the more we can use Jo`s book and anybody`s book,
articles, everybody`s, messages are important in changing the hearts and
minds of Americans because, you know, we`ve come a long way. It`s thanks
to so many who came before us that we are here today, enjoying the
privilege we have.
But there`s a lot of work to be done yet. We hope that all the advocates
BECKER: Where Cleave Jones who was the creator of the aids quilt takes me
to city hall to show me where Harvey Milk --
CAPEHART: In San Francisco.
BECKEL: Yes, exactly. There`s a bust of Harvey. We had just left the day
of testimony and he went up to the thing and he padded the bust, the bronze
head, and he goes, Harvey, you can`t believe what`s going on down the
street, meaning the federal courthouse.
CAPEHART: Fantastic. Thank you, Joe Becker, Ashley Lininger, Kris Perry
and Sandy Stier.
That is our show today. Thanks to you at home for watching. I`ll see you
tomorrow morning at 10:00 a.m. Eastern. We will be joined by Dr. Willie
Parker. This is a man whose story you need to hear. Dr. Parker is a
physician who works at the only remaining abortion clinic in the state of
Mississippi, a clinic that could be soon shut down pending the outcome of a
federal appeals court hearing this Monday.
This Mississippi story is part of a nationwide trend to create so much
legislation that women no longer have control over their own bodies. I
hope you`ll come back tomorrow to hear from Dr. Parker.
Now, it`s time for a preview of "WEEKENDS WITH ALEX WITT" -- Alex.
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