COLUMN: Making Stuff Up, a Winning Legal Strategy

Updated 1 year ago Special to HuntingtonNews.Net

by David Epstein
ProPublica, Sep. 2, 2016, 8 a.m.

You’ve watched plenty of television this election season, so you know what it’s like for arbiters of public sentiment to give impassioned and authoritative decrees that happen to rely on completely wrong information. Somehow, though, it’s slightly less amusing when the Supreme Court does it. As the Wall Street Journal notes, in a 2003 case, the Justice Department convinced the Supreme Court to uphold “a blanket policy of denying bail to thousands of immigrants imprisoned while appealing deportation orders.” And all it took was a little totally wrong data. Your mere three W’s:

What?

 

According to the Journal, the 2003 case — Demore v. Kim — was a challenge to the federal government’s practice of holding non-citizen immigrants (including those with green cards) without bail once they became eligible for deportation. The Supreme Court ruled that the feds could keep on doing that, because it only took four months on average to resolve deportation appeals. This “very limited time of detention,” in the Court’s words, is so short that it doesn’t violate a constitutional right to a bail hearing. I mean, I get it, four months, it’s like not even enough time for an Austrian to go on vacation. (On the other hand, as HBO’s “The Night Of” showed, it took about six hours of imprisonment for Naz to go from college tutor to hardened criminal crack addict, so maybe languishing in prison, not so great … )

What’s wrong with the ruling?

You know how when your family plays Trivial Pursuit at Thanksgiving, and you correctly answer that the capital of North Dakota is Bismarck, but your Uncle Theo is holding the card and swears you’re wrong and the answer is Fargo? Well, the Journal reports that the DOJ’s “four months” claim sounded so preposterous to immigrant advocates that they were pretty sure the answer on the back of the card was something completely different. Said advocates — particularly the American Civil Liberties Union — filed Freedom of Information Act requests, and it turns out the average detention is more than a year. Whoops. That’s enough time for Naz to have detonated a nuclear weapon in prison.

What now?

Unclear. For now, the ruling stands as is. But the Demore v. Kim decision is relevant to a follow-up case scheduled for the Supreme Court’s next term. In that case, the government wants to overturn a ruling that entitles non-citizen immigrants to a bail hearing after six months of imprisonment.

They Said It

“The conclusion the court drew is understandable, but it is incorrect.” The court “may wish to amend its opinion to delete” the ruling. —Justice Dept. Solicitor General Ian Gershengorn in a letter to the clerk of the Supreme Court.

CONTINUE: https://www.propublica.org/article/srsly-making-stuff-up-a-winning-legal...


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