Member Submission: Open Letter to Merrick Garland, Attorney General

Open Letter to Merrick Garland, Attorney General

Let us begin with some words. You may be familiar with them. They come from the statement of Chanel Miller, the victim of a notorious sexual assault. She said:

“You took away my worth, my privacy, my energy, my time, my safety, my intimacy, my confidence, my own voice. Until now.”

These are moving words. Anyone guilty of doing those things to another human being should be properly punished. Because they are, apart from murder, the cruelest form of punishment.

Did Chanel Miller get back the things she lost by seeking justice?

You might say, yes, she did. Or she believed enough in the justice system to think so.

Please keep reading. The next quotation is from a decision of the late Richard Matsch, a judge you knew well because he presided over the trial of the Oklahoma City bombers, whom you prosecuted.

“… registered sex offenders and their families and friends face a known, real, and serious threat of retaliation, violence, ostracism, shaming, and other unfair and irrational treatment from the public, directly resulting from their status as registered sex offenders, and regardless of any threat to public safety based on an objective determination of their specific offenses, circumstances, and personal attributes… The register is telling the public––DANGER––STAY AWAY. How is the public to react to this warning? What is expected to be the means by which people are to protect themselves and their children?”

This decision was in the case of Millard v. Rankin. His ruling in that case was later overturned by a court stating that sex offender registries are not a form of punishment. Even though they do everything Chanel Miller said was done to her.

Judge Matsch went on to write:

“… the public has been given, commonly exercises, and has exercised against these plaintiffs the power to inflict punishments beyond those imposed through the courts, and to do so arbitrarily and with no notice, no procedural protections and no limitations or parameters on their actions other than the potential for prosecution if their actions would be a crime.”

What are these punishments? They include: restricting where people can live, work, and travel; branding their identity documents with marks and warnings; separating families; imposing onerous reporting requirements and severe criminal penalties for failure to comply with them, etcetera.

No other class of Americans not on parole or probation is subjected to so many punishments for life. Today there are close to one million of these Americans. That doesn’t include their families and others close to them who are also affected by sex offender registries.

When you gave up your position as a federal appellate judge and returned to the Department of Justice, you cited the example of your role model, Edward Levi, who is admired for his integrity and for cleaning up the excesses and abuses of that department after the Watergate scandal. Most of those abuses occurred in the Executive Branch.

However, Congress delegates many powers to the Executive Branch. One of those powers concerns the law governing the registration of convicted sex offenders. Before you took your current job, your predecessor, William Barr, issued a controversial new set of regulations to enforce that law.

You have decided to retain those regulations. Many people consider them to be punitive, as attested to by the hundreds of comments submitted to your department during the regulatory review period.

Justice is meant to be blind: in other words, dispassionate. You have a reputation for judiciousness, probity and dispassion.

However, you spoke with passion at your confirmation hearing and in other instances (recently in Ukraine, for example) about your commitment to public service. You have said that your commitment comes from the duty to give something back to the United States, the country that protected your family from persecution in Europe.

The American people are well served by committed public servants as well as passionate ones. So it is important to ask you this: How do you rectify your commitment to public service with your determination to enforce a law that Judge Matsch stated is a form of collective punishment and that closely resembles what your own family suffered?

Because Congress delegated the authority to you to determine the best ways to enforce this law, you have an opportunity to honor both Judge Matsch’s memory and the words of Chanel Miller.

For example, you could set aside the Trump administration’s regulations instead of defending them in court.

You could stop enforcing the law retroactively.

You could align the regulations with the new model penal code of the American Law Institute, which was the product of many years of thoughtful deliberation by the nation’s foremost legal experts. They include the son of Edward Levi, the distinguished jurist David Levi, who heads the American Law Institute.

Not only Congress but also the Supreme Court has upheld your power to do those things. Of course, you have every political incentive not to do them, or even to read this letter. But if you have read this far please consider this final request:

Please think about how your time in office will be remembered when yet another injustice goes the way of the lynch mob, the internment camp, and the blacklist, as public shaming registries will do someday. All those injustices were once as popular as registries are now.

Please think about the legal reputations of Roger B. Taney, Henry Billings Brown, A. Mitchell Palmer, Hugo Black. No matter how much good they may have done in office, their names are remembered for one great injustice committed in the name of public safety.

Please think about what you want your own descendants to think about your role in public life. You oversee a large bureaucracy but it is your name, Merrick Garland, on those regulations, memoranda, and cases.

Please think about all the people in the past who also had the power to remedy injustices but who instead took refuge in legalities and bureaucratic proprieties.

Please think about what Edward Levi would do.

And please think about the words of Chanel Miller, and ask yourself: Are you willing to inflict her punishments on any other human being?