tv Politics and Public Policy Today CSPAN April 7, 2016 1:00pm-3:01pm EDT
charter movement is backed on the idea there's no definition of what constitutes a good school. education is all about matching. and what you want to do is match each child's gifts and temperaments with an institution that can bring out his or her best self. so here's a test for you, when you see that crazy quilt of charter schools, and it is a crazy quilt. you can walk your head around the city and poke your head in some of them. does that strike you as evidence of inconsistency and trouble? they don't all look the same, they don't all follow the same rules. or does that ecosystem of options you find strike you as a healthy sign of adaptation to what people want? which brings us to a final item on the list of alleged weaknesses of philanthropy. the fact that some donors are mean, you'll hear this one for sure. or they're selfish or all they want is their name on a building.
well, guess what, it's absolutely true that some people do good work for not such good reasons. and there's absolutely no reason to deny that in my opinion. to let's close this talk with some acknowledgment that donors aren't all saints. you are looking here -- actually, you are looking here at jay paul getty. jay paul getty was a cheapskate literally one of the richest men in the world installed a pay phone at his estate to make his guests pay for their own telephone calls. some may remember this, at one point his grandson got kidnapped, remember this? held ransom for $17 million. and so grandpa's negotiating endlessly forever can you get that down a little bit. to the point where they finally cut off the grandson's ear and mailed it to grandpa. and at that point he kind of resigned and said, okay. but get this, he paid as much of the ransom as tax deductible, don't ask me why any ransom is tax detuktable, he paid $2.2
million and the rest he gave to his son as a loan so get grandson out of hostage. at 4% interest by the way. that's the kind of man we're talking about. not a sweet and fuzzy man. nonetheless the reality is that jay paul getty also with some other part of his brain gave the world an absolutely sublime collection of greek and roman art that will be elevating souls for centuries to come. here's one more example and i'll close before my voice completely drives you all crazy. you are looking here at leland stanford. listen, folks, no cardinals in the audience, but there is absolutely no denying that corruption made leland stanford rich. he built his railroad fortune on every trick in the book. they used stock watering, collusion, he did all kinds of string pulling, kickbacks, bribes, you named it. he got good at it. yet that important yet, yet when his son died, genuine grief over
this tragedy led him to decide he was going to use his ill-gotten lucrative to benefit the children of california and ultimately all of us by building stanford university. so the message is that, no, philanthropists aren't always pretty. there's no question about that. but here's the really fascinating secret about philanthropy. you don't need to be an angel to participate. the brilliant thing about this mechanism is it will take us just as we are. you know, all the selfish impulimpul impulses and the noble impulses and confusions and wishes and wants and vanities of all sorts that swirl together in every one of our breasts and it will take that and use it in a wondrous way to get good things done even with our flaws. that's kind of the genius of the mechanism. so obviously if i've done nothing else this evening i hope i've convinced you that philanthropy's just a huge and fascinating and really powerful aspect of our culture.
i assure you i've only scratched the surface of the almanac. it's a 1,300 page book and a lot of remarkable stories in there. as you please do grab one and as you leaf through them i hope you'll kind of keep track of one very profound reality. there's lots of human interests and fun stuff in there, but there's a deeper message that's terribly important which is v voluntary giving in this country is not -- you know, it's not some sort of acute hobby. it's not just a nice national sideline. it is right at the very heart of our country's success. so with that i will thank you very much. [ applause ] >> i'm sure you've generated a lot of questions. so why don't we put a couple on the table? i'm going to go back and get him some tea. >> that would be welcome. >> put these two questions right here on the table first and i'll be right back. >> thank you.
>> hi. i'm bob. i'm a consultant. how is the internet affecting philanthropy? you had talked about crowd sourcing. >> well, more generally not just internet but the whole kind of modern culture of the computer revolution is affecting philanthropy tremendously. you know, for one thing, philanthropy used to be an undertaking of retired people. as you know a lot of the people have made internet fortunes today are getting involved real early and doing it in parallel with their career building. and that's a very new model. and i think it bodes well for this thing i've tried to emphasize that it's not just the money you give. it's the insights you offer and the management skill and the wisdom and the daring and the entrepreneurial talent that you bring to the table. so that's a big, big influence. there are all kinds of in addition technical aspects to this. people would -- some people, i should say, were panicked when the zuckerbergs announced they were going to give away their money without using a traditional 501-c3 or traditional foundation. people said it's not really
giving it away. factually it can be giving it away even better. you know -- thank you so much. with some sort of commercial mechanism or hybrid mechanism. so we're having an explosion right now of mechanical innovation. and technical innovation in the field, which i think is very exciting and encouraging. >> hello. my name is david. i really enjoyed your sort of darwinian mutation analysis of philanthropy. do you ever get into judgment of philanthropy? like for example you emphasize a lot about higher education, and from my mind higher education has become almost an end to itself nowadays in the cost of higher education, the utility of it is less than it once was, i believe. do you discuss, do you judge at all in your work? >> you know, you can't help. i have my own opinions. i try real hard to keep them out of the almanac. i was telling karlyn before that my main yardstick was was this
effort ever consequential? lots i don't really like myself or would have done myself, but the measuring stick is did it make a difference? did it redirect american society? and if it did, we put it in. now, i think it's really important not just for me as an editor but for all of us as observers of philanthropy to try to resist that temptation to judge because very often you don't really know what's going to result from an innovation. there are lots and lots of examples in my book where people kind of launched something and weren't quite sure. quick example, remember the ice bucket challenge a couple years ago? people said, oh, how silly, isn't that a trivialization of philanthropy? they raised like $160 million and a lot of follow-up after that because oe people gave they tended to give twice for the als association. i don't know if any of you noticed, was it in january, i believe? i was really struck by this. one of the leading researchers on als at johns hopkins went on reddit and gave a talk where he said if you think that the ice
bucket challenge was trivial, that that was a joke or that doesn't make a difference, i got news for you. in that very same day they released an article in science magazine, the real heavyweight authority in science, that said they used this huge influx of als ice bucket challenge money to try a very unorthodox kind of unconventional approach. and the bottom line is they discovered that it's very likely that there are going to be important new therapies resulting from this within a few years. those therapies -- the clinical trials for those therapies have also already been prepaid for by the ice bucket challenge. so it's easy to scoff and easy to anticipate problems, but i think the track record of philanthropy is such that it's a mark of wisdom to just be a little agnostic, kind of let things run their course. there are plenty of dumb ideas, they all die, they do not get renewed. you have to have a little confidence that the competition of ideas will handle that, that it's worth throwing a lot of
stuff out there because that's what philanthropy is. it's our innovation budget. it's way more risk taking than anything the government does or anything many private companies will do in the area of medicine for instance. you're going to bowl on your innovation budget. that's the nature of taking risk and experimenting. >> question back here. right there. >> hi. i'm art with the american public transportation association. i missed the very beginning, not sure you mentioned detroit, but detroit is the city where a lot of people believe in the city saying i'm stepping forward in a philanthropy way to get the city back. comments on any of that? >> yeah, you're right. this new grand bargain would not have happened without donors. again, it wasn't just the money. it was kind of the insight and the squaring of the circle. i'm trying to not maul this phrasing, somebody i admire who i won't identify was saying that, you know, that's kind of the difference between politics and philanthropy. in politics he said it's all
about the math of subtraction. trying to subtract other people's, you know, attracti attractiveness and philanthropy is about addition. it's a different method. it's a different style. it's a different approach to a public problem. when you get to a sticky wheel like detroit which is a huge mess with all kinds of villains involved in it, political instinct and temptation is to throw brick bats. and that's probably what politicians should do, frankly. there has to be accountable and punishing maybe element involved, but it doesn't solve the problem. and the philanthropists come and they have a very different motivation. they want to get out of the woods. they don't want the treasury of the detroit art museum raffled off and schools shut down. they didn't want disastrous things to happen. so the politics of addition worked very well in giving it a second chance. now, detroit can still blow it. this didn't guarantee they had a rosy future, but it gave them a second chance. we'll see if they're idiots or not. >> question right here. >> linda greenberg, breitman
publishing. i really enjoyed listening to the wonderful stories. every now and then though i thought sometimes these people don't work out quite as well as you would like. and the person i remember was jeffr jeffrey saks. and i think he took a great deal of money and disappointed so many people and caused so much harm. so i know that we saw a lot of very good people, how about the people who took the money, they certainly had a goal and ideal, but they were misguided? i think the scale of it today is, you know, very large. >> that's a very fair point. and it is large. partly because the scale of the good work is large too. i mean, this is as i tried to indicate a very big sector. i would say the success-to-failure quotient is higher just somebody who came to the field four years ago, it's
way higher than government success-to-failure ratio. and it's as high as much of the private sector. philanthropy is very -- you do not get renewed if things don't work out. you can blow a loan of money and you can blow people's expectations and you can really ruffle up a society for a short period of time. but it goes away. there is a death sentence on bad programs. meanwhile, when was the last bad government program you knew that got shut down? >> exactly. here and then we'll go to this side. >> thank you. claudia rosette. thank you for that fascinating lecture. i want to follow-up to ask about publ public-private partnerships and here i have in mind an example if you like the u.n. foundation, which came out of ted turner's billion dollar gift to the u.n. but translated into ted turner paying people inside the u.n. to find things that would further his agenda thus climate change and so on, in other words he leveraged the u.n. by this philanthropic gift.
how do you -- and over and over we see that large philanthrop t philanthropists will try to leverage contributions from the federal purse. what's happening with that and what do we do? thank you. >> i personally am not a fan of public-private partnerships in most cases. what usually happens is the public swallows up the private. that's the normal kind of m.o., the way they normally unfold. i think the advantage to society is to have two distinct elements that operate very differently. they have different incentives. have different payoffs. this is all about kind of a competitive approach to problem solving. and each sector has its strengths. and, you know, there are fields in which both will by definition be kind of preeminent, but i think it's very unwise to try to hybridize. you're just going to get a very unpleasant mush in most cases. it's going to look a lot more like the public side and not have any of the energy or
distinctiveness that makes, you know, philanthropy really useful to all of us. >> i think there are two right here. we'll put both of these on the table. you first, sir and then come up here. >> i'm andy stevens. i used to work for the kmarchar koch foundation. a lot of great industrialists leave their fortunes to foundations that would horrify the founders, what do you think the notions philanthropists should spend the money while they're alive or set up foundations to spend themselves out of existence shortly after the donors death. >> spending down is a big priority of the organization that i work for, the philanthropy round table. and more importantly it's a big priority of modern donors. the fraction of foundations that used to spend down used to be something like 5% and last i checked it's close to 30% now. and a fast rising curve. and precisely the reasons you mentioned. not only because you can get into new attitude or ideological
that would be unpalatable to the donor, but again the power in most cases of this philanthropy is it's connected to the fresh ideas and vigorous problem solving of the donor. once it becomes embedded in the foundation, the fore foundation now has a what is it 25-floor tower in new york city? it's become -- you lose any of that freshness that really made philanthropy working in the first place. i think lots of good reasons to encourage -- it has to be the donors choice between current donors to think hard about spending hard when they're alive and making sure the people they really trust clean up whatever's left in the five or ten or fifteen years after they're gone. many did that, george eastman was a pioneer in doing that spending while living. >> take one more question, gentleman in the back and then i would like to invite all of you to a reception outside where karl will be signing your books. >> john kramer. thomas sole points out 56% of americans will find themselves
in the top 10% of earners at some point in their lives. can you talk about that american dynamism and what it means for american philanthropy? >> it's really true. i just found a wonderful organization i never heard of, anybody here heard of anokians? it's a french organization named for enoch in the bible, the man who didn't die or couldn't die or never did die. and the enochians is an association with mostly european with a few japanese firms that are hundreds of years old. the breret ta gun company -- still owned by the beret ta family. the howard family in britain has been the richest family in britain for 400 years. you don't get that in america. they make money and lose money and give away money. part of what's really wholesome and helpful to our capitalism is the recycling function that is
at the heart of philanthropy. i want you to just think about this. bill gates last i checked has a personal fortune of what $40 billion, i think, something crazy like that. he has pledged to give away all but $10 million to each of his children. he's got three kids. so he's going to hang on -- the gates family is going to hang onto $30 million. do the math. $30 million on a $40 billion fortune, he's hanging onto a fraction of 1%. he is voluntarily embodying this dynamism you're talking about. he's using that money to try to build up another generation of successful americans. he's using that to save other people's lives to get them educated and help them succeed as he succeeded. he's no exception. this is right at the heart of american capitalism and american philanthropy and those are two closely intertwined factors. >> thank you all for coming and thank you to the c-span audience. and thank karl once again for this wonderful lecture. [ applause ]
president obama returns this afternoon to the university of chicago law school where he taught constitutional law before entering politics. the president is going to lead a discussion with students, faculty and judges from the u.s. court of appeals for the seventh circuit which has jurisdiction over legal matters from illinois. they're going to talk about the supreme court vacancy and the president's nominee which republican leaders are blocking, merrick garland. you can see that discussion live at 3:30 eastern on c-span. this week on c-span, the
supreme court cases that shaped our history come to life with the c-span series "landmark cases" historic supreme court decisions. our 12-part series explores real life stories and constitutional dramas behind some of the most significant decisions in american history. >> this is a story and a case about presidential power at its limits during times of war. and it puts before the courts central themes about the conditions into presidents during times of emergency can do things that may not be expressly stated in the constitution. and the limits that congress and the courts can place on it. >> chief justice rhenquist reaffirmed, miranda, as you said in your opening, the case has become to be accepted by the culture. how many cases can we say about that? >> it was a sweeping decision. it isolated the u.s. as one of only four nations of 195 across the globe that allow any abortion after fetal liability and yet it has not settled the issue at all. >> and tonight we'll look at the case of baker v.carr,
established courts to review issues painting the way for one man one vote stand for american democracy. watch land mamark cases tonight 10:00 eastern on c-span and c-span.org. the supreme court heard arguments last week in a case whether the sixth amendment's constitutional right to a speedy trial applies to the sentencing phase of a criminal prosecution. the question is whether the speedy trial right also applies to a defendant who pled guilty and then must wait a long time before receiving his sentence. oral argument in the case went about an hour. i will hear argument next in case 14-1457. betterman versus montana. mr. rowley. >> mr. chief justice and may it please the court, the speedy trial clause applies to a
criminal prosecution through its culmination and sentencing. it's not cut off when the defendant pleads or is found guilty. the clause guarantees a early and proper disposition of a criminal charge and that applies to the guilt stage of a prosecution when most defendants plead guilty and to the sentencing stage, which may be the only place in a criminal prosecution today, when a defendant mounts a defense. >> does the federal speedy trial act, does it cover sentencing or limited to trial? >> your honor, my understanding is that it's limited to trial. the court has recognized specific interests that are protected by the speedy trial clause and those interests apply not to presumptively innocent defendants, as the state and united states suggest, but some
of them apply specifically to guilty defendants. in barker for instance the court notes that one of the interests that is protected by this clause is the interest in rehabilitation and that a prolonged period of detention in jail can effect a defendant's rehabilitation. well, that is specific to a guilty defendant. and in smith v huey. the court noted that even though the defendant had been incarcerated in federal prison that defendant could still be prejudiced by a prolonged delay in the state prosecution that followed because it could affect his ability to seek a concurrent sentence. that interest also is specific to a guilty defendant. the sharp line between the guilt stage of the prosecution and the sentencing stage of a prosecution is not supported by this court's speedy trial precedence. >> what do you do with -- all of the speedy trial decisions say
there's only one remedy, and that is case over. dismissal is the only appropriate remedy. but you are -- you are not arguing that, i understand, with respect to sentencing. >> yes, your honor. >> you are arguing that? >> no, we are not arguing that. >> it's different, the speedy trial clause, if you do not comply with the speedy trial, dismissal. you are saying sentencing is not the same to that extent the remedy is different. >> at the guilty stage of the prosecution, the outcomes are binary so the defendant is either guilty or innocent. so there's two possible outcomes. sentencing the situation is different. there's greater opportunity for
tailoring which is what the court requires per morrison. and there may be a greater need for tailoring, because the defendant has been adjudicated guilty. in the sentencing context where the courts have a range of possible sentences and outcomes tailoring, there's greater opportunity for tailoring. >> so what would be the remedy be in a case like this? >> we submit the proper remedy would be to reduce mr. betterman's sentence by the period of delay. and the montana supreme court concluded the unjustified delay was 14 months. >> he was serving a sentence for another crime. >> yes, he got time served the other sentence, that period of delay, the 14 months was not credited to his sentence on the bail jumping sentence, which is the sentence that is at issue here. and we submit that a proportionate or appropriate remedy would be to reduce that
sentence for the period he was denied access to rehabilitation programs and suffered the anxiety that is detailed in his affidavit, and that would be a way to go. the lower courts have applied that sort of remedy to sentencing delays. and another possible outcome and another case would be a simply to vacate the remaining portion of the defendant's sentence. but here we submit that a tailored remedy would be just reducing his sentence. >> what do you make of the fact that the sixth amendment said the accused shall enjoy the right to a speedy trial by an impartial jury? >> your honor, the impartial jury clause doesn't limit the word trial. the court recognizes the public trial right might apply at a suppression hearing.
so the impartial jury clause applies to the portions of a criminal prosecution. the stages of a prosecution where a jury is actually impaneled. if you go back to the purpose of the clause was to prevent jurors from offering evidence against the defendant, it makes good sense it would apply to the stages of a criminal prosecution where a jury is convened. >> mr. rowley, if we were to disagree with you and say that there's no sixth amendment right and there was only a due process right, have you waived any argument that you meet the due process standard? >> we did not include that in the question presented, in the montana supreme court, rejected that challenge. it applied a due process test and concluded that under a due process analysis, mr. betterman would not be entitled to relief. and that gets to an important point. >> i understand that, you are
admitting that you are giving up, that the analysis under the due process clause may have been wrong. >> your honor, we are not advancing that claim here. and so, there's the significant difference we submit between the due process analysis and the barker test that this court has applied under the sixth amendment speedy trial right. and that is, under a barker analysis, prejudice may be presumed. and barker also addresses specific forms of prejudice that may form from a delay in a criminal prosecution. the test applied under a due process analysis does not address some of those specific -- >> i agree, why do you think lavaskco applies at all, that is preinindictment delay where we were creating an exception and saying, generally the state has the period of a statute of
limitations to bring in action. if you want to cut them off from having that right, you need to show actual prejudice. >> that's the test that the montana supreme court applied below. it is the test that other courts that have rejected the sixth amendment speedy trial right to application at sentencing, they have pivoted to the due process test in lavasco, and that creates a significant burden. >> just to continue in this line of questioning, there's another case that we had that dealt with civil forfeitures. which is the 850,000 dollars in u.s. currency case. where it said, we will do a due process analysis, but we are going to take the barker factors as our test for that due process analysis. so i think one of the questions that justice sotomayor is asking why wouldn't that be equally
appropriate here. in other words, even if and i'm not saying this is right, but even if, there's, this is falling within the due process box, rather than the sixth amendment box, that there's still a further question as to whether the lavasco approach is right, or whether this u.s. currency approach is right. >> your honor, that is what the montana supreme court attempted to do it. it modified the lavasco test and tried to draw on barker principles in applying it. if you compare the result in the case, to the result in the burquette case, where the court analyzed the specific forms of prejudice that are at issue in a pretrial. and if you don't, if you presume prejudice or require the state prosecution to rebut, the court there found a violation and the court here despite modifying
lavasco did not find a violation. so, the test is still inadequately protective. >> i'm not sure what you mean by this. in the other case, the civil forfeiture case, we just said, we are going to apply the four factors of barker and if that were the result of the due process approach -- i mean, it would not make any difference which box it was in. >> that is true, your honor, but that is not what the montana supreme court did. it didn't apply all the factors in barker. it didn't apply barker in a straightforward fashion because it approached prejudice the same way that lavasco did. it required the defendant to make an affirmative showing of presence, that showing substantial that's different from the barker test. and we submit also that given the specificity of this right that it's enumerated in the sixth amendment that it would not be appropriate for the court to shunt that interest, that set of interests that are enumerated
in the sixth amendment into the due process test. that the better approach is to do what the lower courts have done take the framework which already exists and apply it to straightforward fashion to delay at sentencing. >> but you are not asking us to do it in a straightforward fashion. that is what justice ginsburg asked you. you are giving up the barker remedy. >> your honor, the lower courts in analyzing barker to the sentencing contest have fixed, more tailored remedies. in recognition of a fact that there may be a difference between a delay at the guilty stage and a delay at sentencing because now the defendant has been convicted. so the lower courts in applying barker have done this. they have tailored remedies they
have applied remedies that leaf the convictions standing and it will try to fix a proportionate remedy for the delay. >> so why don't you think they have done the same thing under the due process clause? recognizing that it is unfair to undo a conviction merely for sentencing delay, because you are no longer presumed innocent. you are now guilty. >> the key -- >> um, why isn't the due process test that is being applied, that modification? your honor, the reason why the due process test as it has been applied by the low courts does not do the job, is because they continue to require an affirmative showing of prejudice. so they don't presume prejudice, which may be significant. washington, the case out of the fifth circuit illustrates this, the court there did not presume prejudice. it may be important to presume prejudice, because it's hard to show the effect of the delay on the defendant's defense or other forms of prejudice. and so, even the courts that
have applied it, and modified it, still don't presume prejudice or require the prosecution to make a showing in response to articulated prejudice. they just apply and require an affirmative showing of substantial prejudice. so, even this modified version that you see in the montana supreme court opinion below, we submit is inadequate. also not appropriate because there is this enumerated right in the sixth amendment and shouldn't be shunted into the -- >> when you say prejudice should be presumed, do you mean it should be presumed conclusively, could it be rebutted? >> yes, it could be rebutted and indeed in a case like this, where the defendant has articulated specific forms of access. i was denied access to rehabilitation programs, i suffered anxiety. the state should be able to come in and rebut those claims. the state did not offer that evidence in the case.
the first evidence that we saw was in the briefing on the merits in this court. so, the state did have the opportunity to make a showing, and it didn't do that. >> when you say that the remedy should be tailored, tailored to what? what is the court supposed to do in your view, select a punishment that is appropriate to deter the state from doing this again? or select a remedy that in some way undoes the damage of the prejudice that has been done to the defendant? >> your honor, morrison speaks to this. and it requires that the court fix a remedy that is tailored to the injury suffered from the constitutional violation. >> okay, in that situation, i don't know why reducing the sentence by the length of the unconstitutional delay that is supposedly unconstitutional delay, undoes the damage that has been done by the delay.
>> your honor, it's a proportionate remedy because the defendant was denied. mr. betterman was denied access to the rehabilitation programs. that were not only good for themselves, but bears on his prospects for parole, on his case for parole or early release. the fact that he was denied them for a significant period of time bears on his ability to try to win early release. and this court recognizes that any amount of time that the defendant has to spend in prison as a result of a sixth amendment violation is cognizable. we submit it is proportionately tailored. >> when justice ginsburg asked you about the federal speedy trial act, and you said that does not cover sentencing. but there's provisions of
montana law that do cover sentencing. why didn't you seek relief under those? >> your honor, there's montana statutes that require that sentencing be placed within a reasonable amount of time and foreclose on reasonable delay. we have been unable to find a case, where the defendant was able to win some kind of relief on the basis of those statutes. on the montana supreme court decision below reflects. the court's view, that they had due process principles. so it was due process principles that provided the relief. and we have not found a case that gives free standing, independent, relief on the basis of the statutes. if you look at the rule 32 cases -- >> did you bring a claim under those statutes? >> we did not, we did not. >> would it be appropriate if i'm made to respond, yes, there's -- but he had advantages too from being in jail, he was closes to his family. he was closer to his council to confer more easily with council.
when we have to consider, we have to consider the plus as well as the disadvantages. >> certainly, your honor, if the prosecution offered that kind of evidence, it would weigh in the balance. and barker discussed that, notes that the speedy trial clause is unusual in that delay in some instances may benefit the defendant. but here, where mr. betterman has submitted an affidavit and also in the initial motion detailed the prejudice that he suffered. from this delay. in ability to access the programs that he was ordered to complete and that under montana regulation would bear directly on his case for parole. the prejudice is palpable and resonates with other cases. where the court noted that even if you are incarcerated on a prior charge, you may have this problem.
back to justice sotomayor's question about lavasko and the difference between these two tests, we submit if you compare the outcome here and compare the outcome in verket, a very similar of prejudice. he was denied access to rehabilitation programs and he suffered anxiety. the defendant testified to that affect and the third circuit concreted that in the absence of contrary evidence that was enough to state or show a sixth amendment violation. whereas in the decision below, the montana supreme court placed the burden squarely on mr. betterman to make an affirmative showing of substantial prejudice. even though he submitted the affidavit that detailed the
prejudice. the montana supreme court deemed it speculative. >> my problem is with the use of language. prejudice is prejudice. and i -- they seem to be arguing that substantial prejudice means something like actual damages. that you can point to something that i have actually been damaged by either having served longer than the sentence that is imposed or something else like that. why you are taking on the substantial damage definition? why aren't you arguing that prejudice is prejudice? >> well, it is, your honor, but lavasco uses the word actual, so the test that was applied -- >> you are still in the lavasco test. >> that's the court that the due process test that the court has aapplied, now if the court said that the barker test including the way that barker approaches prejudice could be actionable under the due process clause, that would be a different story.
but simply not the way that lower courts have companion have examined it that would give a defendant sixth amendment relief under the due process clause. but that is not what the montana supreme court did it. >> and that's not the way you are arguing the case. >> we did not preserve a due process challenge. it's solely under the sixth amendment and set forward in the question presented and indeed, in the lower courts we pressed the sixth amendment right. but, to your honor's question, if the court were to take that sixth amendment analysis and drop it in the due process context, the defendant would get the same relief. but we submit that just given that the right is enumerated in the sixth amendment. that the relief ought be granted under that clause and not shunted in to due process. >> there are no further questions, i would like to reserve the balance of my time. >> thank you, council.
>> the speed clause to protect a criminal defendant consistent with the text and history of the clause. and it's consistent with the remedy that must be applied. it leaves defendants with other means of challenging unjustified sentencing delay without requiring to modify the test and remedy for a speedy trial violation. the speedy trial is unique because it gets at the heart of the government authority to try to prevent the defendant at all. it may forfeit the right, which is why dismissal is the remedy. sentencing delay doesn't impact
the validity of trial. it doesn't impact the authority of the government to bring defendant to trial. doesn't apply. for example, there can be no anxiety over public accusation because the accusation has been confirmed. at the moment of conviction, the defendant's liberty is justly deprived that is why bail is not available at that point. >> when in your view, let's say, we agree with yo that speedy trial is not the right rubric. when would a delay in sentencing be a problem? >> if a defendant was not able present mitigating evidence. that could be an example.
if he is serving a -- awaiting sentencing for a time longer than the maximum sentence for the charge. that would be another example. >> but you would not count factors of the time that were raised here, that is, i could have gotten in to a drug treatment program in the penitentiary that is not available in the jail? you would not include that? >> that is right, it's too speculative a basis. it's speculative, whether rehabilitative programs were available. and whether they would take them. the defendant was offered parole conditioned that he would fill -- fulfill rehabilitation program. he started the rehabilitation program and 16 days later he quit it.
so, his parole was rescinded. that is the part of speculative basis, it's too speculative to give a remedy. but the defendant is always able to file a claim if the sentence is harming him. he can first ask to be sentenced, the defendant in the case, didn't mention it until nine months in to the process. >> there may be some real differences between the pretrial context and the presentencing context. but one which seems quite similar is the potential of delay to impair the defense. so, i guess i would like you to address that because, you know a the petitioners point out, in most cases these days. most of the adjudication goes on in sentencing rather than at the trial stage given that we don't have many trials anymore.
and they made it clear that it was an important interest in thinking of the speedy trial right. >> justice kagan, first of all, i would say that had that danger is equally at issue in preindictment delay, delay involving appeal, which is not included in the speedy trial analysis. second, so that can be remedied by due process, even if it's a similar interest. second -- >> well doesn't it talk about a whole different set of considerations in the pretrial context, that does not apply once the accusation has been made? >> perhaps not, i think it will apply in the appeal context and even appeal at resentencing the same considerations would be at
issue. the delay could impact -- or if there's a retrial ordered on remand in a case. that is interests that the due process clause can remedy. the other point is sentencing is different. i mean, the same rules do not apply and usually the same facts are not at issue. i mean, given the ubiquity of plea agreements, that the real action is in the plea bargaining anyway. and the prosecutors and the deficit agree on a sentence or a range of sentences and that is implemented by the judge. >> sometimes, but there may be real factual disputes, it could be about the amount of loss or drug quantity or prior bad acts, it might be about a whole range of things which are the kinds of things we actually typically think of as contested issues at trial. >> that is true. i would argue that the due process provides adequate remedy in the situation. there's a different standard too. the rules of evidence doesn't apply. the confrontation clause does not apply.
there's no burden to prove facts beyond a reasonable doubt and the argument is that due process can remedy any prejudice that happens -- >> that's the problem, how do you prove, i mean, let's take a indeterminate sentence, one more like this where, where you have the possibility of a sentence between zero and ten years. how does the judge know whether if the defendant is brought before him at year eight, eight and a half, nine, how does the judge know that if the defendant had been brought to him at year five he would have given him a six-year sentence instead of an eight? don't you think there's a lot of pressure on the judge if the defendant's hearing is delayed for eight years to say, time
served? don't you think there's prejudice in the fact that an unexplained delay caused by the state, more likely than not had some sort of affect on the sentence? >> i think in that case, the defendant should. if it's that lengthy of a delay, he can file a petition in that context. >> well, this defendant asked to be sentenced faster. he was told there was other issues that the court was dealing with. so a couple of the months were not his fault clearly not his fault. it was an administrative fault. >> that is true. there was not all the delay was his fault. but he didn't mention anything about wanting to be sentenced until nine months in to the process. >> well, that may go to the issue of whether under a barker analysis or any analysis he should be heard to complain about the delay.
but, i still, not quite sure why your definition of substantial prejudice or actual prejudice prejudice should be the controlling one. >> i think the courts have -- even lower courts that have applied the speedy trial clause to sentencing delay, the 10th circuit, for example, they assume that applies on one hand based on -- decision in pollard, but then on other they recognize if the interests don't apply, in order to fashion a remedy in a post conviction setting the defendant has to show prejudice. in addition, it takes into account that the balance has shifted. the person is no longer accused but convicted, and his presumption of innocence has vanished. >> assume that there is a prompt trial. they then a very substantial delay in sentencing, and then there is an
appeal. an appeal results in new trial. does the speedy trial act then apply when the defendant says my second trial was delayed? are there cases on that? >> i don't think so. i think generally when courts -- lower courts are applying delay in the appellate context or resentencing context, they apply due process. >> because if that delay were attributable to the state, it seems to me there would be a speedy trial act violation in that connection. >> there may be. and lower courts when they look at appellate delay or delay in sentencing, it is a pretty similar test as far as the speedy trial clause is concerned when courts apply it presentencing because it requires a showing of prejudice, and it evaluates the government's reasons for the delay. >> but you aren't aware of any cases of the kinds i've indicated where the speedy trial act then clicks in for the second prosecution? >> i'm not aware of any cases.
>> under what law can a defendant who suffers unordinore delay in sentencing get a relie in. >> under the federal rules there are specific procedures -- >> he indicated that there are the rules there but no defendants have had the benefit of getting their sentences shortened because of those. >> i'm not aware of any defendants' pressing claims -- any reported decisions on those claims one way or the other. but a defendant always has that option, and especially under a mandamus. and i think at that point, fashioning a remedy just for delay i think is difficult. because my friend it mentioned 14 months, the delay really wasn't 14 months of unjustified delay. he didn't make his claim until nine months, but before that there is always going to be some delay --
>> but the court did say that the delay was principally caused by the court's institutional problems. >> it was. the court took a while to decide post conviction motions and it was institutional delay. i don't disagree with that. but my point is that there's always going to be some delay in the process. so to figure out what the remedy would be simply by including the entire 14 months i think would be a windfall to the defendant, especially in this case where he's -- he was receiving credit on his sentence -- >> is it typical for a sentencing court to give credit for type served? >> yes. in fact, it is statutory. >> is there any way they can do that when you have an indeterminant range? sentence is zero to ten? can they say it will will be zero to nine in this case because of the delay? >> i'm not sure.
i think a judge could do that. in the petitioner's first conviction on domestic assault, he was awarded 53 days of credit for -- against his sentence and the court specifically stated on the record that he took into account and applied that against his sentence. >> do you think the courts -- the judges are incapable of making determinations of a remedy? >> certainly not, no. i think under due process, that's the advantage of due process, courts can fashion a remedy to target the specific prejudice and i think they are well equipped to do that. >> where did it come from that parker that prejudice is supposed to be assumed. i was just looking at the case. it doesn't say that. in fact they analyze prejudice. >> that's right. the court has only presumed prejudice that i'm aware of -- >> have we held that? >> two things. extraordinary delay.
it was an eight and a half year delay between when a person was indicted and when they were brought to trial. and then there was -- the court said there was no justifiable reason for that delay. >> no. my question is, your brother counsel said barker versus wingo it would apply, it presumes prejudice. so i've just been looking at that. in the case itself, it doesn't presume prejudice. it analyzes whether there was or was not prejudice. so i want to know where that requirement of presumed prejudice comes from. >> the first factor in barker is to -- >> i know the four factors. i have them in front of me. >> yes. that's the presumptive prejudice factor gets you to the test. so it triggers the test. i think my friend is referring to the doggett case. in his brief he describe it at
some point if the delay is so excessive -- >> so -- it is a 20-year delay. the person won't even remember who he was going to call. all the witnesses will be gone and so forth. so i think it is fair to say there was prejudice in such a case, if that's what it is about. so if it isn't presumed all the time, do you have any objection, as he apparently does not have any objection, to our saying -- you're right, it's the due process clause. now in applying the due process clause to cases where the sentencing has been unduly delayed, or that is the claim, the court should apply the factors as set out in barker versus wingo. >> there is a couple problems with that. one, barker was specifically designed to take into account pre-trial interests under the speedy trial clause. in the case justice kagan
mentioned, the forfeiture case, it was a preadjudication case so it fit in that context. so applying barker -- >> i'm sorry, that was a forfeiture case. >> correct. >> and that's a penalty after adjudication. the forfeiture doesn't start until someone's been found guilty. >> i'm sorry, it was a pre -- basically property was taken before -- >> whatever the case is, i'd like yet an answer to my question. it says the court should balance four factors. length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant. now if i quote that accepts and say those are the factors that should be taken into account under the due process clause, do you have any objection to that? >> prejudice needs to take the forefront in that analysis. >> i should just reverse the four. >> well, the problem with barker is it holds that -- in the post conviction setting is that none of the factors are necessary. so prejudice doesn't necessarily
have to be shown in barker. lower courts have modified that and said, in the post conviction setting a defendant has to show prejudice. the test that lower courts use, the modified barker test, looks a lot like lovasco. in fact, it is indistinguishable, because prejudice. and prejudice is the key to the answer to your question, justice breyer, that in a post conviction setting that's what's necessary. and also, to my friend's point that the petitioner made claims of prejudice, be i'd point the court to joint appendix 66 and 68 where he made his claim of prejudice in the space of a couple paragraphs. this sort of ill sfraustrates t problem the state has in rebutting claims of prejudice that aren't substantiated. he didn't file his affidavit, which was still fairly bare, but at least more substantiated,
until at least three months after he filed his motion and his motion was denied. it was a motion to reconsider. i think defendants in this context have to come forward with some showing of prejudice. >> well, that might present some challenges. but there are also challenges on the other side. it's often hard to show that people have forgotten things. they've forgotten them. so unless there is something like a witness dying, it is very difficult to make the kind of showing that you're suggesting. and that's why barker left things flexible and said, in midwest cases we really are going to look at prejudice. we're going to see what you have to say for yourself in some extreme cases, we're not going to do that. again, i guess i'm back with justice breyer's question, yes, this is a different context, but why don't all the same considerations apply? >> the court has never presumed prejudice except in an extreme -- >> i wasn't suggesting presumed prejudice. because barker doesn't suggest presumed prejudice.
as you say, the difference that barker has with respect to your test is simply that barker says it's not always necessary to show prejudice, that there are extreme circumstances in which we'll just take that for granted. >> i don't think that takes into consideration the change that happens at conviction. it is a substantial change. i think it gives the defendant a windfall if you can come to court and say this delay is prejudiced and -- >> well, if you think that a very significant part of this rule has to do with impairment of the ability to defend yourself, and if you think that that kind of consideration applies just as well at the sentencing phase as it does at the conviction stage, maybe in most cases more so, given that most of the action these days takes place in the sentencing phase, i guess i just wouldn't see why there's any need for a different rule, especially given
the level of flexibility that barker gives. it's not like barker says we're presuming prejudice in all circumstances. barker is saying, prejudice is one of the four factors. it's a very important one and usually we'll expect people to come in with some kind of showing, except for an in extreme cases when not. >> i think it comes down to remedy. remedy for speedy trial violation is dismissal. so in the post conviction -- >> well, that's what we said in barker when we were talking about a pre-trial case. but the remedy in this case would be different. >> right. but it would be more difficult. if the defendant doesn't have to show prejudice, i'm not sure what the court would remedy. that's one of the reasons that their prejudice should be required because there's got to be something, something that the court is actually remedying. even in the speedy trial cases, the courts usually require some showing. >> when it comes to the determination of facts that are relevant at sentencing, that
does not take place exclusively, or probably even it doesn't take place primarily, at the time when the sentence is pronounced. isn't that correct? it takes place during the preparation of the presentence report. at least in the federal system. is that true in montana as well? >> yes. yes, justice alito, that's exactly right. most of the facts are analyzed through that presentence report and speedy -- and sentencing hearings at that point are pretty drab affairs because most of the facts have been resolved. >> thank you, counsel. >> miss anders? >> may it please the court, to go right to justice kagan's concern about about the possibility that a defendant's due process is impaired, though the defendant has to show prejudice the standard should be
the same one that applies in cases of other violations of constitutional rights that may affect the defendant's ability to defend at sentencing and that is the defendant should have to show that there is a reasonable probability that the result would have been different, the outcome would have been different. that is the same standard that's used in cases of brady violations, of ineffective assistance of counsel. it is one that doesn't require a defendant to show by a preponderance he would have received a different sentence. he just has to show that he suffered prejudice, that when you take all the evidence into account, it puts the output in a different -- >> how do you see that as different from what goes on under the barker analysis? >> i think under barker the court does aplow for prejudice to be presumed in some cases so a defendant doesn't have to make any particularized showing of prejudice. we think in the case of sentencing prejudice at sentencing the defendant should have to show some concrete effect, some -- >> but i take it that we have said that that's the case where the delay isuper long. so take a delay of eight or ten
years. and why is it in that very extreme circumstance that the defendant should have to make any particularized showing? >> well, i think the defendant may well be able to make a particularized showing in that case. but i think there are two primary reasons that it's just not appropriate in any case for prejudice to be presumed at sentencing. the first one of those is that i think the constitutional rule has to take into account the wide range of sentencing proceedings here. when we talk about pre-trial delay, all trials involve historical facts that in theory could be prejudiced by delay. that's not the case of all sentencing hearings. there are fully discretionary systems where historical facts would not have as great an effect. there are sentencings that turn mostly on the present characteristics of the defendant rather than on historical facts. so i think prejudice should not be presumed in any case but in a situation where the defendant actually will be affected, the due process analysis is tailored in you have to allow him to have
aleve in that situation. i think the second reason it is not appropriate ever to presume prejudice at sentencing is that the conviction changes everything. once a defendant has been convicted, there is a strong societal interest in giving him an appropriate sentence. so to give him a recommend did i for presentencing delay i think involves generally the remedy is going to involve lower what would otherwise be an appropriate sentence. so in that context i think it is appropriate to require the defendant to show some actual injury in order to justify the societal cost of lowering an otherwise appropriate sentence. >> in the federal system, do the judges typically give credit for time served? >> they do. yes. >> your rule would apply to capital cases as well? >> i think capital cases may be different. i think the court has said that in some context -- double jeopardy, for instance -- the capital sentencing in some respects is an extension of the trial. in that situation you may say the same thing with respect to speedy trial claims as well. >> i'm sorry? say it a little bit more than
that. you would say because the penalty phase really is a trial? >> i think there are some respects in which you treat the penalty phase as an extension of the trial. yes. i think the other reason that it is not appropriate to presume prejudice at sentencing is that in the preindictment context, the court has said that the poor interests of the speedy trial clause aren't implicated and even though that kind of pre-arrest delay may have the same sort of effects on the trial that prejudice that's hard to articulate -- >> but the defendant is at liberty in preindictment delay. >> that's right. that's why the court concerns of a speedy trial clause aren't implicated in that scenario. that speedy trial clause isn't implikcated because defendant's liberty interest hasn't been restrained by the indictment. but a similar thing happens after conviction. at that point the defendant doesn't have a cognizable
interest as a result of the conviction. >> if we take out the "presumed" prejudice, which is not part of parker analysis. just defines prejudice. how would using the barker standard and saying no presumed prejudice, you have to prove some prejudice, how would that change the analysis? >> i think one other difference i think in the two approaches, aside from the presumed prejudice, and that what counts as cognizable prejudice. court said in marion that the type of prejudice we are concerned about is actual prejudice to the defense of a criminal case. >> that's for the pretile. >> right. but what that -- we think what that means in the sentencing context is that the defendant should have to show a concrete effect on his defense at sentencing. in other words, the probability that the result would have been different or that he's been serving longer time than he should have been.
but it also means i think that things like access to rehabilitation programs, anxiety, that those would not be independently cognizable as prejudice under the due process injury. >> you think that if a defendant was writing to a judge every week saying, i'm anxious, i really need to know what my sentence is, and the judge ignores it for a period of time, that that defendant still has to prove something more? that's not the facts of this case. there was no complaint for nine months. and whatever treatment the defendant started for anxiety started well before any time had elapsed in this sentence. but you don't think that defendant is entitled to any consideration by a trial court? or that we should be barring a trial court from considering that? >> two points with respect to that. if a defendant is asking for sentencing and the court is ignoring that, that would be inappropriate. the defendant would obviously have other remedies i think at that point after requesting
sentence, perhaps mandamus, perhaps a habeas petition. but if the only prejudice he is claiming a anxiety, then, yes, i do think that that would not be cognizable under due process. that's really because once a defendant has been convicted he can now be sentenced, he can be subject to the practical deprivations that are an incident of sentence. i think that after he's been sentenced, of course, he doensnt have an interest in not being anxious so i think it would be very odd to say he has a sentencing delay related interest in that kind of claim that could be the basis for a constitutional violation. >> miss anders, i'm sorry. one of the things that strikes me as odd about your argument is that you are suggesting that a remedy would be appropriate in certain circumstances, you just want to put this under the due process clause. and what's odd is that, as you say that in this post conviction context, the defendant has been
deprived of any liberty interest. yet the due process clause talks about a deprivation of liberty. but the defendant no longer has a liberty interest. so it seems a very odd place to park this right and this remedy, the due process clause, in this context. it seems much more natural that you would do it under the speedy trial clause on the assumption -- on the view that the trial has to do with both the adjudication of guilt and the determination of the proper sentence. >> well, two points with respect to that. i think if the court were to say -- to use the standard that we propose -- so essentially no presumed prejudice, only certain things are cognizable as prejudice and the remedy would not always be the conviction, i think we wouldn't have a practical objection to calling that a speedy trial clause. we're concerned with the substantive standard and the remedy. i do think after the defendant
has been convicted societal interests have shifted. that's why i think it is appropriate to apply due process. the defendant has a liberty interest in the length of his sentence, he has a due process interest in the fundamentally fair proceeding. we think due process nicely captures that interest that the defendant has. the court has said before a speedy trial kicks in, due process applies and it provides a right and we think that after the defendant no longer has the interest protected by the speedy trial clause, due process can again provide the proper approach. >> thank you, counsel. >> the standard for prejudice articulated by the united states shows well why due process protections are ill-suited to the specific interest protected by the speedy trial right. the united states suggested that the defendant would have to show that the outcome would have been different. consistent with lovasco, the only form of prejudice that would be cognizable under that
test is an effect on the defendant's defense at sentencing. but as barker illustrates, and smith also illustrates, there are other forms of it prejudice that are specific to the speedy trial clause that may apply to a defendant, and indeed may apply to a defendant even after they've been convicted. so for example, in smith v.hooey, the defendant had already been incarcerate ond a prior federal charge. that defendant's liberty interests were already impinged, yet the court noted the delay from the follow-on prosecution could still prejudice him. so this notion that you would apply due process test or the lovasco test and require a showing, an affirmative showing, that the defendant would have had a different outcome at sentencing but for the delay, really highlights why due process is inadequately suited. justice kagan's question points to another anomaly in the test that's been proposed by the government because of this focus
on liberty interests and in smith v. hoo -- >> i suppose it isn't liberty. it's not incorporated under the 14th amendment anyway. >> yes, your honor. >> the sixth amendment applies only to the federal government and it is only because of the 14th amendment liberty that it applies to the states. so liberty is involved. >> yes, your honor. but the position that the state of montana and the united states have taken is that at sentencing, once a defendant has been convicted, they don't have a specific liberty interest of the kind that was recognized in barker. and the kind that was recognized in smith. and that is the interest in rehabilitation, in accessing rehabilitation programs that could be affected by a delay in a prosecution. >> his liberty is certainly in effect. he's in jail. so he's sitting there in jail. tell him you're free, i don't think he believes it. then the question is, is at some point his being in jail a
deprivation of his liberty without due process? because the due process clause would require application of sentencing under -- and when it's not due process when, say, barker or some violation is violated. i don't see a problem with liberty. >> your honor -- the point is simply that the speedy trial test that the court articulated in barker is better suited to the specific forms of prejudice that are at issue in this case because it addresses this concern with even a defendant who's been guilty, accessing rehabilitation programs, or the anxiety that that defendant may feel at the sentencing stage. and this gets to another point that the united states made. that is that the conviction changes everything. because the concerns that the court articulated in barker may be yet more significant at the sentencing stage given that most convictions today result from guilty pleas. so the fact that a defendant --
their defense may be impaired by a delay in criminal proceedings maybe more significant at the sentencing stage because it may be the only place where the defendant challenges an upward adjustment, or contests facts. fact that the defendant may need to access rehabilitation programs would be more pronounced at sentencing because the defendant's already been convicted, they're going to serve time and they want to get access to the programs that they'll need to get parole as soon as possible. so we submit that barker is the appropriate test, that if the court agrees that barker is the appropriate framework, that the proper right to ground that analysis in is the sixth amendment and not the due process clause, and that's particularly so because of the an parts of the clause that apply to the sentencing.
sentencing at the jury verdict used to be so closely bound and the right is rooted in this practice of circuit justices resolving cases. not just prevsiding over jury trials but solving cases. we think the sixth amendment is the appropriate basis for this right. >> at the time of the adoption of the sixth amendment, weren't post trial but presentencing delays fairly common? >> your honor, the stevens treatise says that at the time common law that sentencing took place, usually -- not automobilalways -- soon thataftereafter. oftentimes immediately. in the cases that we catalog in our appendix illustrate that point. but it is not just that.
as the court has recognized, the sentence was usually automatic. it flowed from the jury verdict. >> that's just not true as a historical matter. it's not true as a historical matter. if you look at the first criminal provisions that were enacted by congress, they called for a range of sentences and the sentencing judge had to select within that range. i'm talking about the early 18th century, not when you say that it was automatic. >> your honor, i'm referring to the observations that this court has made in the apending line of cases. it is the early part of the 18th century -- i'm sorry, in the early part of the 19th century because as the court has noted, states started to adopt statutes that gave sentencing courts more discretion. but certainly a common law, certainly at the time of the founding, the court noted that typically the verdict dictated the sentence, and so this right that was created -- >> that just isn't true. we don't have the right to
change history. it isn't true. the first -- if you look at the very first criminal provisions that were enacted by congress, the first congress, they were not -- it was not determined at sentencing. >> your honor, for many crimes, serious crimes, at common law, even for some that today we would consider not so serious, usually the penalty was death. and so there was this close relationship. the court has called it a close relationship between the verdict and sentencing. we submit that that together with the way that the process was conducted shows that the right was created to cover the whole proceeding through the imposition or pronouncement of sentence. there are no further questions. >> thank you, counsel. the case is submitted. this week on c-span, the supreme court cases that shaped our history come to life with the c-span series, "landmark
cases, historic supreme court decisions." our 12-part series explores real-life stories and constitutional dramas behind some of the most significant decisions in american history. >> this is a story and a case about presidential power and its limits during times of war. it puts before the court central themes about the conditions under which presidents are during times of emergency can do things that may not be expressly stated in the constitution, and the limits that congress and the courts can place on it. >> chief justice rehnquist re-affirmed miranda, he said the case has come to be accepted by the can you will tur. h -- culture. how many cases can we say that about? >> it isolated the u.s. as 1 of only 4 nations on the globe that allow abortion. >> and baker v. carr is the case that established the right of federal courts to review redistricting issues, paving the way for the one man, one vote
standard of american democracy. watch "landmark cases" tonight at 10:00 eastern on c-span and c-span.org. president obama returns this afternoon to the university of chicago law school where he taught constitutional law before entering politics. the president is going to lead a discussion with students, faculty and judges from the u.s. court of appeals for the 7th circuit which has jurisdiction over legal matters from illinois. they're going to talk about the supreme court vacancy and the president's nominee which republican leaders are blocking. merrick garland. you can see that discussion live at 3:30 eastern on c-span. a look now at how the confrom ikt co conflict in syria has changed over the past five years.
welcome to hudson institute. welcome, all of you. we welcome our c-span audience, too. i wanted to welcome, also, the panelists we're very proud to have a wonderful panel as we often have here. i'm going to talk about the subject in a moment but first i want to introduce the other panelists and say briefly the kinds of things that they're likely to touch on. to my immediate right is joe, a visiting scholar at the carnegie endowment for international peace. he's also a former policy planning consultant with the french foreign ministry. joe and i first met in beirut about ten years ago now. >> more. >> more. yes, you're right.
more. wow. it is a pleasure to have him here, a pleasure to welcome him. it is a huge honor to have him here. to his right, jamana, her first time at hudson, too. we welcome her. she is a policy analyst at the u.s. commission on international religious freedom. to her right is my colleague here, michael doran, a senior fellow. i am also a senior fellow here, and also a senior editor with the weekly standard. panel that we have convened today is syria five years on. we're going to touch on some of the relevant issues that you see unfolding before you right now. i think that joe is going to be able to give something of a regional perspective, and also something of a european perspective. jamana will talk about a number of sectarian issues at play on the ground. mike is going to speak from a u.s. -- more of a u.s. policy
perspective. this will certainly be one of the things we will be talking about, what it will look like for the next administration, the next white house, what their policy choices will be in syria. but i did want to start by saying it is five years after what began as a peaceful uprising in syria when people took to the streets across the country and the assad regime started firing on them. it's important to remember how what we now commonly call a civil war started as a peaceful protest movement. it was the assad regime that turned this in to that initiated -- the hell that we have been watching unfold the last five years. the way that i look at what's been happening in syria, what it's turned into the last five years, we are looking -- if you've seen people talk about the isis campaign of genocide against christians and yazidis and other minorities. let's keep in mind the preponderance of violence has
been assad's and it's waged against the surabaya arab population in syria. it is very important to keep this in mind. players in washington would like to divert attention away from that and other international players but this is a key issue. there is a multi-actor war, including states and non-state actors, and now continues to draw in other players, including most recently russia. the final thing the syrian conflict represents at this point is a profound refugee crisis that's affecting both europe and the rest of the middle east including lebanon, turkey and jordan. what we're watching unfold, i look at at the most profound humanitarian catastrophe so far of the 21st century. we haven't seen anything like this since the break-up of the former yugoslavia. except even more profound, it is
affecting two continents at least, rather two regions of the world -- the middle east and europe. and i have little doubt that it will have profound consequences here in the united states as well in a number of different ways. so with that, again, i just wanted to remind us all to bring it back to how this started a little more than five years ago in syria. so joe, i believe you are going to open up first. so thanks very much for being here. start off. >> thank you very much. i'm really very honored to be here today, first of all, congrats for your fantastic new venue here. >> thank you. it is beautiful. >> i'm also very, very happy because it is the first time i am doing something with hudson but i am also very humbled and a little bit moved to talk about something that has turned out to be an endless bloodshed now. we're reflecting on five years after the start of a syria
revolution that started very promisingly. it was the midst of this arab upheaval, arab uprising, call it as you wish, arab spring or something, that was really bearing promises of change in the arab world. today we're stuck into something that is much more, unfortunately, murky and muddy. what i would say is probably very much in line with your points. i would try to say two or three things that oscillate between the regional, international and the local level in syria, just to put the broader picture. and then my colleagues could get into more detailed analysis. first of all, the first i think very strong take-away that we are faced with regarding syria for the last month is, mainly since the beginning of the russian intervention, end of september, is that syria is today quite exclusively a duopol
between russia and the u.s. i think all the other actors are at least for now. i question mark is how long and what could happen after, but they are today monopolizing at least the international diplomatic grammar or the tango around syria. they are the ones who are holding the keys. this is very transparent in the u.n. process, in the geneva process, in the wordings of the resolution, be it 2254, 2268, et cetera. now the second important thing in that respect -- and this is -- i mean i'm saying it very coldly without any political intent -- is that within this theopolistic structure of the management of syria you have very clearly a u.s. subcontracting to russia of the syrian issue. and you can see it very plainly on many levels, the way that the
russians have obtained -- they're drafting -- the exact drafting of resolution 2254 and 2268, the fact that kerry didn't take more than 30 minutes to concede to lavrov that would bar any reference to the real delegation, for example, to assad's fate which is i think officially accepted. i mean reuters had a paper yesterday saying that the u.s. has really conceded that the next round of talks would not address the assad issue. so there is an entire set of concessions, probably mike will discuss that, that indicate the kind of subcontracting from the u.s. diplomacy to russia over syria. now it has several meanings, of course, and it has several implications. i think that part of which this very strange announcement of drawdown from russia and syria which is not exactly a withdrawal in terms of military -- i mean reality is
the fact that probably russia took what it really wanted in fact out of this intervention, which is partly to do with syria but not so much, but partly, but mainly has to do with the win of moscow to really become the power of the u.s. on the national scene. and we are at that point. now it is an illusion, it is something that could fade away, but today this is it. and it has a lot of -- set of consequences for syria. this brings me to the more local dynamics. probably, as we say in economics, everything held equal, the truce will hold probably for a moment. now a moment in syria is five, six months. not more. and this period is not a coincidence. it is indexed, i feel -- and this is my analysis -- on the change in the u.s. administration. so until the last day -- or the last minute of obama in the oval office, probably this kind of illusion of truce will hold.
the truce is not holding and jamana will say a few words about it concretely. but both paerrties, americans a russians, and the u.n., are saying it is holding so we are presented with the reality that it is holding. now we have to accept that it is holding relatively which is something good on the humanitarian level. but what it means in terms of local development in syria -- this is why i'm bitter five years later -- i think that what we are heading towards today is exactly a kind of frozen conflict. this is something very familiar to the mind of the russian strategists. they have a frozen conflict in crimea, ukraine. now they are having one in syria. this frozen conflict has several functions and uses for them. first of all, it allows them to wait for the next administration and to see what are the bargainings possible with this new administration. second, it will consolidate the
front lines and the divide lines and demarcations. and this is a real potential drama for syria. it means that maybe we're not heading toward partition, but in the de facto sense of the term we have now a fragmented syria. we have, more or less, an assadstan, which is a marginal question if assad survives. it is no more important. you have a kurdistan that's been announced two weeks from now officially. of course you have verbal possessions from washington and moscow saying this is a breach to the political process but in fact everybody is protecting kurdistan. then you have this kind of very murky, very strange and potentially very dangerous sunnistan in the middle which will become in time the quagmire for radicalization and great er
centralization of if not isis but other factions and whereby you will have isis fighting with nusra, isis fighting with nusra, others fighting with seculars, et cetera, et cetera, in a kind of really, really somali land scenario. my bet is that in that respect -- and i come back here to the external scene. in that respect, we have now a very deadly game between moscow and washington, each one waiting for the other to really become exhausted and come back begging for the other. i think the battle that we had two days ago is an exact example of that. as soon as the palmyra dust was settled, as soon as the chanceries and diplomatic circles, the discussion became what about raqqa? who will take the lead on raqqa? a combination of the u.s. and
russia? i won't disclose secrets, but for example i receive messages from my former employers asking what's the mood in washington, are americans also ready to give raqqa to the russians as a kind of -- in this line of subcontracting, which would in fact be catastrophic for the syrians because it would completely achieve to rehabilitate the assad regime for a while. so this is on the local level. now given this very dark and gloomy picture, what could derail this? i think two things. one which is -- i admit my naiveness on that. one which is the local reality. you have witnessed that as soon as the truce was in effect, very few hours after, syrians went down back to the streets. so it is as if five years of
bloody barbarism. as if we were in march 2011 still. and the second friday clashing physically with al nusra in several villages which is, for me as an observer and as a supporter of the syrian cause, really a motive of optimism, meaning that you couldn't -- you will not be able to put a lid on that story. and i think that this is something people in washington in the oval office, in moscow, even in the palace in damascus should reflect upon. you will not be able to shut this off easy. this is a motive of optimism. i don't know how it will play out. the second thing that can derail this kind of frozen conflict is the regional actors. i think kind of paradoxically both iran, saudi arabia and turkey have an interest of not seeing this situation consolidated. turkey cannot accept a
fragmented syria. the saudis will never accept that at least damascus is still in the hands of this regime. and iran will not easy to accept that the partial or the main winner in this relative, let's say, march is russia. they have invested a lot in the syrian regime. they would like to find their investment down the road. i don't think they're very happy to see that putin is long calling the shots on that. now what would they do? what could they do? it is very limited. turkey is now really on the verge of severing completely its contacts with syria. talks are in the coming months it will have to find another way to have a link with the syrian revolution. the saudis are a mystery at least for me. they are entangled in yemen. they are speaking loudly on syria but with a very few very real gestures and actions.
they don't want to clash with the russians. they is something they have announced. and doing is in that respect is taking a risk of clashing with the russians. so they have a very limited margin of maneuver. but i think with time they will all bet on a kind of slow and gradual erosion of this long truce and this fragmented frozen conflict. to conclude, i would say that -- and this is -- i say it very bitterly and with a lot of, let's say of sadness. five years later, syria is no more syria. i mean we're talking about something much wider than syria. it is a regional, international conflict at one point, and in some shades it is a planetary conflict. i think that syria will really define the order, the international order, for the days to come. it is an enormous tragedy. i'm not saying it emotively. it is a real geopolitical acknowledgement. it is no more syria.
second, i think it is still open to a lot of surprises and bad surprises, and at least -- i'll close on that -- at least as long as the local reality, the regional conundrum, this tension between iran, saudi arabia, turkey, et cetera, is not squared off, and as long as there is no real parity between the u.s. and russia on that issue with a stronger leverage for u.s. diplomacy to stand on its own words on political software to stop syria, as long as these three levels don't coincide i'm afraid syria will remain an open wound and i fear in five years from now we'll have something of the same talking about syria ten years later. >> joe, thanks for a very moving and very concise introduction, also touching on a few points. one of the things i am reminded
i wanted to come back and speak on particular, looking at lebanon, what will be -- or using lebanon as an example, what are the kinds of things that we might be able to look at over the next five years in terms of pace, or rhythm? because we do see the temporary truce right now. what are the things that may happen? i -- we'll come back to that. >> thank yougain for giving me the opportunity to speak. i wanted to just take a little step back because my job at the commission focuses really on talking to and understanding the grievances of many of syria's ethnosectarian communities. as joe alluded to, the issue of partition is very much a real issue. the word federalism has been thrown around so it is really important to understand what a lot of these different communities are asking for, what they are looking for. i really want to emphasize something you said in the very
beginning which is really to dispel the notion that ba similar al asad is aminorities, stabilizing force in syria when in fact he is the opposite. this is based on what minority communities have told me through my work at the commission. at the beginning of 2011, as many of us now know, bashar al assad made a very concrete decision to release many extremists from prisons that then led really to the islamization of the revolution. they went on to lead isil, al nusra, and others. at the same time that he was doing this, he really deliberately used sectarian -- divisive sectarian rhetoric to really inform and make sure that the a if you did not send your sons to
fight for them, the sunni majority would eradicate them through syria. we've seen this in many instances. the syrian government has relied on its ally iran to help os orchestrate the forced displacement of sunnis and removing shia to damascus and that's really to buttress this stronghold -- assad stronghold in the capital of syria. recently in an area also in damascus, bashar al assad gave the sunnis -- the syrians but mostly sunni population in this area an ultimatum that if they did not leave within 45 days that they would be forcibly removed. on voice of america recently said that iran recently announced it was encouraging construction companies and whatnot to come and construct this area, build it up. it is no secret this will likely be populated with people very
much pro asasad and in good favr with the iranians. the certain for human rights reported that 90% of the 56 sectarian massacres that have occurred since the beginning of the conflict were indeed carried out by the syrian government itself. it prevented many sunnis from returning to their homes in areas where there is really regional diversity. so as to prevent -- to sort of carve out these areas like joe was saying that could be part pro shia. i really struggle with convincing people that assad is not a friend to the christian groups. we've talked to many christian communities, both in the north and in damascus. assad has targeted 63% of all churches in syria. he has attacked 166 places of worship, both from all sects. he has killed around 50 christians but has detained over 450 christians. this is just what we have
documented. there are many others that have been obviously arrested that haven't been documented. i want to just move over quickly to isil because obviously that's captured the attention of the international community. of the 5,800 people that have been killed by isil since 2014, 97% of those were muslims. that isil attacked and killed. that's a very significant number to keep in mind. about 100 individuals were of minority decent. about 50 christians were of that number. this is not to downplay the threat that isil poses to christian communities and others. obviously all churches have been closed down in isil-held territory. christians do not feel comfortable. for example, not wearing the veil in areas where isil controls. but it's really just important to understand that isil is really the enemy of all humanity in syria. sunnis, shias, christians and others.
moving really quickly just to the armed opposition, there have been instances -- i'm not going into detail -- but some instances of the armed opposition carrying out sectarian like crimes. we saw 700 allowite skchlt wes captured. i think one person died. the government was very k cognizant that the international media's attention was on this area so did not attack the area by aerial bombardment but resumed aerial bombardment the next day after the media attention went elsewhere. about the kurdish groups, joe already mentioned them briefly. there is obviously attacks -- reports of ethnosectarian violence and ethnic cleansing. i would say just as an analyst i don't think there is enough evidence to report conclusively
what exactly is happening in the north. there's obviously been some displacement but human rights groups are still collecting that kind of evidence to support or dispute that. moving on just quickly to the issue of the cessation of hostilities. in the past month, one month and two days since the cessation of hostilities has gone into effect. there has been an 85% to 90% decrease in violence which as someone who was really working in the humanitarian field before i came to the commission is a very significant number. from talking to people inside syria, they'll tell you it is the first time in about five years some people have been able to go to sleep. it is very significant that the violence has gone down. now that being said, 91% of all violations have been carried out by the syrian regime. we have 468 out of 512 attacks that have been missiles and whatnot, have been carried out by the syrian regime. 32 of those attacks -- excuse me, 32 attacks were carried out
by the russians, eight attacks by the armed opposition and four by the kurds. another violation of the agreement was detainment. the syrian government has also violated this. 333 individuals were arrested in this month alone. and the last stipulation in this cessation of hostilities was also the delivery of aid and not hindering the delivery of aid. and we have reports that we've heard that i think there was refusal of over 280 deliveries to places that have been besieged. my own birth neighborhood in syria has been besieged for over three years. it has not received -- its a he not been able to receive any medical or food aid, even now. 370 people have been killed during this month which is unfortunately the lowest -- fortunately or unfortunately, however you want to look at it, is the lowest number that we've
seen over the last five years. that, too, is significant. as joe mentioned, the protests -- i want to emphasize as a syrian-american was it was a very proud moment seeing people go out into the streets for the first time in two to three years. since 2012 we really haven't seen protests near this type. men, women and children. i think what's significant from talking to individuals also in the syrian non-violence movement who have been sort of behind the scenes and orchestrating a lot of these protests is that these individuals out protesting in syria are not necessarily the individuals we saw in 2011. many of the individuals out in 2011 were killed, detained or fled syria. so we are seeing a new wave of syria that are out in the streets that are still carrying on the message despite having seen their comrades fall or flee the country five years ago.
so i think what joe said really needs to be underlined that this is not a movement that has disappeared despite the horrific humanitarian conditions that we've seen and the violence that half a million at least people that we've seen die. they haven't given up. they have stood in the face of al nusra and it was very significant when even after they arrested people from the protest, they still went out and were protesting is against al nusra even until today. just going back briefly to the delivery of humanitarian aid, about 30% of people have received some type of humanitarian aid in the beseiged areas. that's if we consider the number of besieged as half a million. there are reports that it is up to a million. but these are like one-off deliveries. so this food may only last them for four or five days. what's meant to feed one person is divided up for three people.
it is a critical issue and i think it is something others in the issg are paying attention to. it is one way they can sort of hold assad accountable based on the security council resolutions that the united states and russia have really passed and are standing by, according to their own decisions. it is a real shame especially on this issue because you have people that we have seen die when there are aid warehouses less than five miles away. doctors -- back to my home city -- have told us they are not able to stair lies any of their medical supplies. this is causing really unnecessary diseases that could be easily prevented. moreover, during these deliveries, these aid convoys, the 10 to 18 air shipments that have made it through, you have supplies that are being -- like machines that are being delivered but the assad regime
is consciously taking out critical supplies needed in order to separate these machines. so it is really hindering this process in a way that is just very -- it's absurd on a very basic human level. i think it's something that i hope that the united nations continues to put pressure on. from what i've heard, as of april 1st, that the regime is going to start being held accountable for allowing or disallowing aid convoys to enter. it has to -- excuse me. so it has to basically give an answer within ten days as to whether or not these aid convoys can go in. there's really no good reason for an aid convoy not to go into a beseiged area. folks on the negotiating committee are saying this might be one way to hold assad accountable that the u.n. and issg could hold assad accountable by placing this sort of ten-day limit. we have the crisis along the
turkish border. we have about 1 million syrians that have been there since the border closed four to five months ago. on the jordanian border 4,000 to 5,000 desert. the last thing i'll mentioned and this is something that i hope joe can expand upon since it more on the regional level but the issue of who will be able to take part in any next steps in syria. we have elections and who was an eligible voter. we've heard assad said that he's going -- we're going of have a constitution ready by august and parliamentary elections in april. obviously many of us look at this this is an absurd idea. the idea of who will be allowed to have a voice in this is very kate call. i think it's something that needs to be emphasized. syrians on the ground are very much paying attention to this because millions of syrians have expired passports and this is an issue that we have to deal with. so you know, in conclusion, i think, you know, really going
back to -- from like i said, drawing on the work that i do for the commission is really emphasizing isil's crimes not only against syria's minorities, incredibly in a vulnerable position, but also against the many sunnis who have already suffered and continue to suffer and be very much a target because they don't espouse isil's beliefs and also to really hold -- to encourage our own government here to keep pushing the syrian government to abide by the u.n. security council resolutions that are really critical just on a very basic humanitarian level. i'll stop there. >> jomana, thank you very much, both for your presentation here and also for the really important work you're doing and the information you're able to give us. i wanted to re-emphasize something that you said before when you started off by saying bashar al-assad is not a protector of christians. i think it's important to emphasize that not only
because -- not only because it's not true, he's not a protector of minorities. plus, i'm concerned every time that that phrase has residence in washington or in the united states i feel that's not -- >> or in europe. >> anywhere. you know, that's -- the europ n europeans, it's up a to the europe 18s. here in washington, it's very important in the united states. it's like we are not in the practice of making distinctions between whose lives are more valuable. a christian's life is very valuable, no one should be slaughtered in syria. no one should be put through assad's killing machine whether these are christians, whether these are iyasidis. i like pushing back on that idea of pushing back on the lives of minorities. minorities are no less valuable. so thanks very much again. mike, if you could follow up but i want to say quickly that
i'm -- as many of you, i hope have read mike's piece from last year and mike has, i believe, uniquely identified the different ways, the administration has been moving in the ejohn, which are largely about iran but also syria is a major part of this. so i think mike is especially well positioned to be able to put this in a larger regional context and also in terms of u.s. policy and different changes. mike, thanks very much. >> thanks for those kind words and thanks for having me here on this panel. i agree with every word that my colleagues have said. in fact, i'd like to key off something joe said in his brilliant analysis. joe said that the -- that what's being fought over in syria is nothing less than the regional order.
and i think that's absolutely true. i think it's worth emphasizing. and i think we need to think much more about it. i wrote down here what i think are six principles that have become -- that i think president obama has sold us on. obviously people who dissent and maybe they don't agree with all of them but i think the administration has been pushing these principles in one way or the other. it's not vus the administration. i shouldn't put it all on president obama. i think that in my own part of the republican party a numbers of the candidates have also pushed these principles. and i think they're all false. i'd just like to run through them quickly. but i'd like to run through them with -- in the context of a discussion about the struggle for regional mastery and for regional order that is going on in syria. the first principle that the president has got us to accept, i think, is that the use of force by the united states is
almost always counterproductive or at least in syria it cannot lead to anything good. the second one is that we don't really -- we, the united states, don't really have a vital stake in what's happening in syria and in the middle east more broadly. and i don't think there's any other way to read the recent jeffrey goldberg article in the atlantic, the obama doctrine which i would urge everyone to read. i don't think there's any other way to read it than to say that the president has decided that the middle east is just not -- that a stable order in the middle east is not a vital u.s. interest. the third principle is that the defeat or the weakening of isis is our strategic goal in syria. and that that goal takes precedence over any other goal. the fourth principle is that iran and russia are partners in the fight against isis.
and if they're not behaving today as our partners, they're going to behave as our partners tomorrow. the time and time again secretary kerry and the president has suggested if you listen carefully, you can hear the footsteps of president putin. he's just about to turn the corner and come in here in order to work with us, to get rid of bashar al-assad. meanwhile, therefore, we can give up any demands about assad, any serious demands about the composition of the syrian government or concessions to the opposition because any minute now, here he comes, president putin. and president putin is very much aware of that and he plays to it by saying i'm withdrawing my forces from syria. i haven't seen them withdraw yet. the sixth is that there are no moderate -- fifth -- i'm at five. i'm at five and i can't even read it so i'm going to run -- i'll say -- i'll go to five and say there are no moderates, there are no moderates among the
syrian opposition that we don't have any -- anyone that we can really work with. and there has been both by our own policy, the government's policy, and by the rhetoric of people in my party, there's been an identification with the syrian opposition and islamic extremism which i think is, a, it's fact actually incorrect. b, it's horrendous with regard -- from a humanitarian point of view the way it tarnishes -- it blames the victims of this horrible oppression. and then, finally, it leaves us to bad policy because we can't look after our own interests because we're reading what's going on on the ground incorrectly. and then the sixth principle which i can now read clearly, is that our allies are the problem. the amount of rhetoric that has come out of the white house
about the problematic saudis, the problematic turks, and so on, at the same time that there's no rhetoric whatsoever about the problematic iranians. all we know about the iranians lately from the white house is that they're this group of moderates that took over the iranian government and they want to make a deal with us and they want to work with us against isis and syria. and isn't it wonderful that they, too, are about to turn the corner and come toward us. meanwhile we have these problematic allies who are causing us all of these problems. and the result of that is what? the result of those six principle, the result is we have this event like just took place. we have this cease-fire which, as joe, i think, very, very adeptly pointed out is an illusion, right? it's on illusion. everyone is sitting now waiting for the next round and the next round is coming, believe me. there's no way that this blossoms and grows into a larger
piece. the result of that is that then assad and his supporters, meaning the russians and the iranian dominated force, take palm mere a and we get things in the num like nest bboris johnso writes that the palm meria has been liberated by -- and that the isis has been defeated there by the assad -- by the assad forces. isn't that really wonderful, right? he's smart enough to know he had to mention the fact that, yes, of course, assad does use chemical weapons and torture his own people and so on and so i feel a little bit -- i, boris johnson, i feel a little bit sheepish about saying this but isn't it wonderful? no, actually it's not wonderful. believe me, i don't shed a tear for any isis fighter who has killed, but what are we talking about? who liberated palmiera?
afghan, iraqi, shiite militias dominated by the iranian, trabd, equipped, and deployed by the iranians with the support of russian air power and as joe said, we have some contracted to the russians in syria which means we are building a new order. not just in syria but in the middle east, in which this russian-iranian alliance and this network of militias that the iranians have put together, which is now operating not just in syria but also in iraq, also in lebanon, also in yemen and so forth is an acceptable partner for the united states and for the -- and for the west. it also means we completely misread what's happening -- what's happening in europe. the refugee crisis in europe and all of the tensions that it creates in europe and in nato is a consequence of the actions of