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Articles by Joseph Margulies

Thinking in a Pandemic: Let the People Go

States should release from prison far more than the very small percentage of low-level, nonviolent offenders they hold.

by Joseph Margulies, Boston Review, April 20, 2020

http://bostonreview.net/law-justice/joseph-margulies-prisons-and-pandemics

COVID-19 spreads where people congregate. With rare exception, it preys on the weakest among us—the elderly, the sick, the infirm—which is why it is so dangerous in prisons. A disproportionate number of inmates are elderly, unwell, or both, and places of detention are often overcrowded and always unsanitary. Several of the largest outbreaks in the country are in prisons.

The public health threat is not unique to these facilities; those in nursing homes, for instance, face a similar risk. But prisons and jails are unique in one respect: the state forcibly brings people to these sites, holds them against their will, and deprives them of the ability to take the precautions recommended by public health officials. This obligates the state, morally and legally, to mitigate the risk. As the Supreme Court has warned, “having stripped [prisoners] of virtually every means of self-protection and foreclosed their access to outside aid, the government and its officials are not free to let the state of nature take its course.”

Yet the official response to the virus ...

Donald Who? Reform Goes Forward Despite His Idiocy

by Joseph Margulies, Justia.com

Recently, the president called for the execution of drug dealers. This is idiotic, of course, both as a matter of law and policy. But no one who has been following these things should have been particularly surprised. The president says all sorts of stupid things, and ...

The Dangerous Notion of a Nationwide Crime Wave

by Joseph Margulies, Verdict

In a recent Wall Street Journal Op-Ed, Heather MacDonald, a conservative analyst with the Manhattan Institute, blamed the so-called “Ferguson effect” for the increase in violent crime experienced in several U.S. cities last year. As MacDonald sees it, criticism of law enforcement in the wake of police shootings has led the police to become timid and over-cautious. They have abandoned the field to the criminal element, she maintains, for which a resurgence of violent crime is the natural result.

MacDonald’s foolishness has been widely ridiculed by an ideologically diverse assortment of journalists and academics, including political reporter Jason Linkins, FOX News columnist John R. Lott, and Northeastern University criminologist James Alan Fox. Even New York police chief Bill Bratton has dismissed the idea of a crime wave. Writers have accused MacDonald of cherry-picking the data; overall, violent crime rates continue to drop in America’s largest cities.

Yet there is a larger lesson to this brouhaha that has escaped attention. Drivel like MacDonald’s is a serious threat to the principles of local self-determination that conservatives like her claim to champion, and the response to her nonsense should be a test of whether conservatives are genuinely committed to ...

Just Another Week in the War on Terror

by Joseph Margulies, Verdict (Justia)

Last week witnessed four parallel developments—two on Tuesday and two more on Wednesday—that collectively reveal the casual, and therefore appalling, normality of the war on terror.

The first arrived Tuesday morning, when the European Court of Human Rights (ECHR) in Strasbourg denied a request by Poland to reconsider its judgment in Al Nashiri & Abu Zubaydah v. Poland, which held Poland responsible for the torture and illegal imprisonment of CIA prisoners at a Polish black site. With the ruling last week, the judgment is now final. (Disclosure: I am one of the lawyers for Abu Zubaydah).

Later the same day, a Russian software maker revealed that the NSA has developed the technology to embed spyware in the hard drives of most of the world’s computers, giving it the long-prized capacity to disrupt or monitor in real time a majority of the computers in the world. Former NSA staffers confirmed the report.

Twenty-four hours later, the military commission system vacated the conviction and sentence for Australian David Hicks, who had been one of the few prisoners convicted under that much-maligned alternative legal universe. David has been home for many years, but the decision last week finally ...