Criminal Justice

Merrick Garland's Worrying Record on Criminal Justice Reform

What to expect from Joe Biden’s pick for attorney general.


The Senate Judiciary Committee will kick off confirmation hearings today for Merrick Garland, the former federal prosecutor and long-serving federal judge tapped by President Joe Biden to serve as the next U.S. attorney general. In an open letter to the nominee, Cynthia W. Roseberry of the American Civil Liberties Union urges Garland to use his hearings as an opportunity "to make clear, on-the-record commitments" to various criminal justice reform efforts, such as vowing to "reduce mass incarceration," "unwind the War on Drugs, starting with marijuana," and hold "police departments and officers accountable for misconduct."

That is certainly a welcome agenda for the next attorney general. Unfortunately, Garland's judicial record suggests that he might not always satisfy the high hopes of criminal justice reform advocates.

Take the Fourth Amendment. In 2003, the U.S. Court of Appeals for the District of Columbia Circuit issued its decision in a case known as United States v. Brown. At issue was whether a warrantless car search violated the Fourth Amendment. Judge Garland wrote the opinion that ruled for the cops. In dissent, one of his colleagues charged Garland with "cobbling together innocent circumstances, and drawing inferences in favor of the government that are unsupported by the evidence."

The matter originated with reports of gunfire in the parking lot of a Washington, D.C., apartment building on the night of April 13, 2001. Several hours after the reports came in, two officers from the Metropolitan Police Department arrived on the scene. A building resident told the officers that the occupants of a parked white car might be involved. According to the officers' account, while questioning the folks in the white car, they became suspicious about the occupants of a black car that was parked nearby, claiming that one of the black car's occupants seemed to be "sizing us up."

The officers approached the black car. After knocking on a rear window, Officer Joshua Branson opened a rear door to get a better look inside. He spotted a handgun on the floor. That led him to pull Rocky Lee Brown out of the car and place him in handcuffs. Officer Branson then took the keys out of the ignition, opened the trunk, and discovered an AR-15 rifle and several rounds of ammunition.

In Terry v. Ohio (1968), the U.S. Supreme Court held that police officers must have a "particularized suspicion" of criminal wrongdoing before conducting that sort of investigatory stop. An officer's "inchoate and unparticularized suspicion or 'hunch,'" the Court stressed, is not enough to create an exception to the Fourth Amendment's guarantee against unreasonable searches and seizures.

Garland's opinion in U.S. v. Brown, however, granted Officer Branson exactly the sort of hunch-based leeway that Terry prohibited. Indeed, as Judge Judith Rogers complained in her dissent from Garland's judgment, "there was no evidence that the police had any grounds to think the occupants of the black car, which was lawfully parked in a residential lot, were guilty of a traffic violation or engaged in any criminal activity….So far as the government's evidence indicated, the occupants of the black car were innocent, uninvolved bystanders and nothing more."

During his long stint on the D.C. Circuit, Garland tended to tip the scales in favor of law enforcement in these sorts of disputes, practicing a style of judicial deference that gave police and prosecutors the benefit of the doubt. Time will tell if Attorney General Garland will follow suit.

NEXT: The Texas Blackout Blame Game

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. From this crew? Well, if past is any sort of predicate, we should see investigations and prosecutions of political enemies, aggressive enforcement of The law well beyond its intended purpose in order to further certain social goals. You know, same old same old.

    1. Intuition could be a reasonable cause, but if not substantiated the action is an offense and punishable.

      1. Guessing is OK if it turns out that you guessed right? Fuck that. No, the evidence must be apparent before you kick the door down.

    2. I did like that the antifa riots WERE NOT terrorism because they occurred in the evening. Only now does terrorism have working hours it must adhere to.

      My one regret…the protesters did not end up killing some Congresspeople while there.

  2. “vowing to ‘reduce mass incarceration'”

    I’m sure the Biden Administration will implement the Koch / Reason #EmptyThePrisons agenda.

  3. “Can the Ethiopian change his skin, or the leopard his spots?”
    Jeremiah 13:23

    1. Christianity is based on the assumption that the answer to that is yes.

      1. No, it is not.

        You make the common mistake of equating the tenets of Marxism with Jesus.

        1. Jesus people do differ on this count. Some thing you have to convert the world because God is a lazy cunt who can’t do it Himself.

          The others thing most all of the 7 billion humans will roast in their own skin for eternity.

          Jesus, innovator of ethics!

          1. I see Tony’s grasp on basic theology is about as tight as his grasp on how oil refining and solar power works, as we learned a few days ago.

            How did this utter numpty ever get a job fifty-centing? Are they hiring retards on purpose?

      2. >Christianity is based on the assumption that the answer to that is yes.

        Is it?

        Matthew 13
        24 Here is another story Jesus told: “The Kingdom of Heaven is like a farmer who planted good seed in his field. 25 But that night as the workers slept, his enemy came and planted weeds among the wheat, then slipped away. 26 When the crop began to grow and produce grain, the weeds also grew.

        27 “The farmer’s workers went to him and said, ‘Sir, the field where you planted that good seed is full of weeds! Where did they come from?’

        28 “‘An enemy has done this!’ the farmer exclaimed.

        “‘Should we pull out the weeds?’ they asked.

        29 “‘No,’ he replied, ‘you’ll uproot the wheat if you do. 30 Let both grow together until the harvest. Then I will tell the harvesters to sort out the weeds, tie them into bundles, and burn them, and to put the wheat in the barn.’”

        1. Ostensible adults debating the finer points of which fairy tales are true.

          Always charming.

          1. “On Saturday night, witches and observers will gather at Catland, a metaphysical boutique in Brooklyn, New York, to, as they state on their Facebook event page, put a public hex on “Brett Kavanaugh and upon all rapists and the patriarchy which emboldens, rewards and protects them.””


            Your peeps, rev. And they’re in Brooklyn, which is part of an advanced, forward-thinking liberal/libertarian metropolis.

          2. “which fairy tales are true”

            Tell us again how GMO’s are harming the planet, and about Chakras, Ancient Astronauts, Astrology, Feng Shui, Ley Lines, Aromatherapy, Colon Cleansing, Crystal Healing, Homeopathy, Ayurveda, Naturopathic medicine, Urine therapy, Hypnotherapy, Dianetics, and Transcendental Meditation.

            1. Anthropogenic Global warming

      3. No, that we must seek forgiveness and strive to do better thru constant prayer

  4. Glad to see Joe “No Darkie Malarkie” Biden is laying down the law after the attempted insurrection this past month.

    1. The soldiers and fences still surround the capital. I expect they’ll be staying.

      1. What did you expect?

        “Oh please deranged guy in moose costume, smear your shit all over the place. It’s the people’s house! Would you like to shoot me here or over there?”

        1. How hated are the Dems and Biden that they require massive troop presence to maintain any semblance of authority?

          Sounds totally like legitimate power they wield.

        2. Now that it turned out that the poop smearing story was the invention of Schumer’s aide (who initially said it was tracked from the bathroom, not smeared), will you be retracting your allegation?

  5. The reason Merrick Garland will probably be receiving bipartisan support today is because of this:

    “Garland’s responsibilities included the supervision of high-profile domestic-terrorism cases, including the Oklahoma City bombing, Ted Kaczynski (also known as the “Unabomber”), and the Atlanta Olympics bombings.[6][28]

    Garland insisted on being sent to Oklahoma City in the attack’s aftermath to examine the crime scene and oversee the investigation in preparation for the prosecution.[29] He represented the government at the preliminary hearings of the two main defendants, Timothy McVeigh and Terry Nichols.[29] Garland offered to lead the trial team, but could not because he was needed at the Justice Department headquarters. Instead, he helped pick the team and supervised it from Washington, where he was involved in major decisions, including the choice to seek the death penalty for McVeigh and Nichols.[29] Garland won praise for his work on the case from the Republican Governor of Oklahoma, Frank Keating.[6]

    Senators in both parties want to launch an all out war on domestic terror in the wake of the Capitol riot, and that’s why they’re all hot for Merrick Garland. To the extent that my fellow libertarians oppose launching a domestic war on terror, we should oppose Merrick Garland on that basis.

    For goodness’ sake, we stood up for the right of terrorists not to be tortured or forbidden counsel and a trial. Standing up for the right of average Americans not to be subjected to a war on terror for protesting or not believing the 2020 election was free and fair should be a no-brainer.

    1. Or. AG is a consolation prize for being denied SCOTUS.

      It has nothing to do with the merits of his nomination.

      It’s not like Biden (or Trump) was ever going to nominate a “soft on domestic terror” AG. They were just going to have a different list of enemies.

    2. the reason Merrick Garland receives bipartisan support is because the partisans are same-team … against us.

  6. What I want to know is whether he has the integrity to investigate and prosecute Andrew Cuomo, Hunter Biden, and any other criminals from his faction of the Ruling Party.

    1. Investigate? Sure, no problem.

      I am quite certain they will be able to find some lower-level people in New York that deserve prosecution in their nursing home scandal. And that will put the whole thing to rest! Unless, of course, decides to get a little uppity. I mean, all of that push to draft Cuomo to replace Biden on a ticket wasn’t going to go unpunished after he won, was it?

      1. I dunno. There might be some people who enjoy seeing Cuomo removed from the national spotlight.

  7. With Biden and Harris, there’s no need to worry about Garland’s position on justice reform.

    1. >>Biden and Harris

      so, Harris.

  8. Cynthia W. Roseberry of the American Civil Liberties Union urges Garland to use his hearings as an opportunity “to make clear, on-the-record commitments” to various criminal justice reform efforts, such as vowing to “reduce mass incarceration,” “unwind the War on Drugs, starting with marijuana,” and hold “police departments and officers accountable for misconduct.”

    “BWAAHAHAHAHAHAHA!!!!1!!!!!!!1 Oh man, that’s hilarious! Wait… you’re not joking, are you?” – Merrick Garland (probably)


    Garland says he is eager to help Congress craft legislation to combat “misinformation and incitement online,” which according to Sen. Coons will be a top priority for Dems. They all agree: fighting “domestic extremism” is synonymous with more aggressively regulating the internet

  10. I’m sure Garland will be a good little apparatchik and is already on board with whatever new definitions of justice and fairness and equality the DoJ wants to push out today, regardless of what definition they were using yesterday.

    1. Well, no doubt the authors here think they will, at worst, end up as kapos in the camps.

  11. >>What to expect from Joe Biden’s pick for attorney general.

    moar rulez!

  12. Per orders from the Big Guy, Merrick Garland also won’t probe or charge Facebook or You Tube for assisting those who incited the most peaceful protest at the Capitol on January 6.
    “Of the 223 charging documents, 73 reference posts on Facebook as evidence, 24 reference posts YouTube, 20 single out Instagram posts (owned by Facebook), and only eight highlight posts on Parler.”

    1. The difference is whether Facebook can demonstrate they made a good faith effort to censor. Not whether they were 100% successful.

      Parler existed to avoid such censorship.

      1. Technically, Parler also censors posts. In fact, at the time they were abruptly canceled, they were in negotiations with Google to adopt Google’s AI censorship technology.

        What Parler refused to do was censor on a political basis. They (claim to, at least, and I haven’t heard any complaints it’s not true.) censor evenhandedly.

        That was what Amazon/Facebook/Twitter couldn’t tolerate: They weren’t willing to join the united front censoring conservatives.

    When questioned by GOP senators, Garland said he wouldn’t commit to releasing the Durham report.

  14. “Communities of color and other minorities still face discrimination in housing, education, employment, and the criminal justice system; and bear the brunt of the harm caused by pandemic, pollution, and climate change.” Merrick Garland

    Is anyone concerned that Law graduates are now de facto experts on epidemiology, infectious disease, meteorology, climate and environmental studies, education, energy markets, housing markets and credit or lending markets?

  15. I assume priority one will be investigating and prosecuting Trump for all the things he’s guilty of but couldn’t be tried for just because he was president.

    It’s Merrick time!

  16. Who could have seen any of this coming? Well, everyone who wasn’t too busy complaining about “Mean Tweets,” that is.

    1. Donald Trump could turn the planet into a crater and you people would ONLY criticize him for his tweets.

      1. Do you even bother trying to make sense anymore?

  17. Too bad you guys at Reason only care about mean tweets.

    You own Biden and every decision his administration makes. Every liberty infringed is partly because Reason employs so many shallow posers.

    1. Mean tweets are the one thing Trump’s followers could find to criticize him about.

      Those of us not in his thrall had plenty of other reasons.

      Not that being a deranged rude cunt is desirable in a president.

      1. Oh, like what Tony? Failing to start wars? Being rude to Top Men?

        1. Didn’t you hear he tried to turn earth into a crater?

    2. Not so much poseurs as pretenders.

      1. They revealed their true tendencies when they were so outraged that a crass outsider became President.

        He was like a fart in their church.

  18. A reminder:
    When all participants of a “system” are feeding from the same nose-bag, free from competition — and are allowed (by your neighbors and friends — hopefully not you) to
    • Make the laws,
    • Enforce the laws,
    • Prosecute the laws,
    • Hire the prosecutors,
    • License the “defense” attorneys,
    • Pay the “judges”,
    • Build the jails,
    • Contract jails out to private entities,
    • Employ and pay the wardens,
    • Employ and pay the guards,
    • Employ and pay the parole officers,
    One can’t honestly call it a “justice” system. It’s a system of abject tyranny.

  19. He has to evade answering most questions during his hearing, so what is there to worry about? (sarc)
    Maybe he will circle back once appointed?

Please to post comments

Comments are closed.