Will Delaware Attorney General Kathy Jennings be the First Lawyer in a Generation to Defend Segregationist Strom Thurmond’s Preventative Detention Law?
The short answer appears to be yes, as WHYY.org has reported that Delaware Attorney General Kathy Jennings supports the change to Delaware’s constitution, presumably meaning she has fully evaluated the same legally and is prepared to go to state and federal court to vigorously defend it. We presume that is what “support” by a state legal officer means.
Yet, as the constitutional fallout from Bruen continues on the other amendments, the original meaning of the 8th Amendment is back on the table. Because the Supreme Court has only interpreted the amendment once since 1951, and arguably in dicta, it is quite likely that the flimsy doctrine of preventative detention upon which the proposed Delaware constitutional amendment is legally based, like it or not, will come back before the Supreme Court. The Delaware constitutional amendment is the precise vehicle opponents of preventative detention have been waiting for.
Speaking of the origins of preventative detention, allow us to explain the origins of this concept called preventative detention now that the Supreme Court applied the new standard. Delaware Attorney General Jennings is going to bear the burden of providing historical evidence pursuant to Bruen that preventative detention was an allowable power of the government in prosecuting a criminal defendant despite precisely zero textual support.
Where did we get preventative detention? The record is quite clear on that point. Richard Nixon ran for president on the idea that people who are a “clear and present danger” to society must be held in “pretrial preventative detention.” That term had no legal or other meaning when it first was uttered by then former Senator Nixon. The federal city was chosen to be the lab experiment with this new preventative detention statute, which was invented in 1969 by a defender of Plessy v. Ferguson, none other than Assistant Attorney General William H. Rehnquist, Jr. At the time, the panel of judges approving in the District split down the middle and passed it by a mere single vote, likely under White House pressure. The Supreme Court, with then-associate Justice William Rehnquist firmly in place, affirmed the constitutionality of the statute, even though at the time it was sparingly used on fewer than 100 people over a decade.
Then, in the 1980s, a former advocate and vocal defender of racial segregation, Senator Strom Thurmond, successfully spearheaded the movement to pass a national federal preventative detention statute as part of the Bail Reform Act of 1984, which many states have now copied. Many testified that the statute was unconstitutional, including learned appellate judges, but those arguments ultimately fell on the unpersuadable ears of one of the inventors of preventative detention now sitting behind the bench at the U.S. Supreme Court, newly-minted Chief Justice William H. Rehnquist, Jr., who then wrote the majority opinion concluding that the preventative detention statute was constitutional.
Delaware Attorney General Kathy Jennings is unfortunately supporting the Delaware Constitutional Amendment that is directly based on the Bail Reform Act of 1984 and the legal doctrine underpinning it will be directly at issue when the Delaware law is most certainly challenged. General Jennings will now have to go before the U.S. Supreme Court and defend the constitutional and historic basis for incarcerating people without bail—one that was not dreamed up by the framers of the U.S. or Delaware constitutions but by Richard Nixon and a young, enterprising attorney who later affirmed his own work.
Indeed, Attorney General Kathy Jennings will now take the torch of preventative detention directly from the hands of Strom Thurmond and Solicitor General Charles Fried and carry on their movement directly to the steps of the U.S. Supreme Court. General Jennings will apparently aggressively assert that government has the right to incarcerate without bail in noncapital cases contrary to our constitutional tradition and based on faulty law review articles written by British authors in Cambridge to satisfy the originalist wing of the Supreme Court Bruen test. This constitutional change was not envisioned by the framers of our constitution, but by instead by a nefarious Richard Nixon in a smoky backroom with a slick attorney who used the federal enclave to create a new idea where the government can just say you are dangerous and that is it. Of course, the house that Rehnquist built was built on the governments’ settled ability to detain American citizens of Japanese dissent who were never charged with a crime, something the United States Department of Justice and United States Supreme Court, under Chief Justice John G. Roberts, Jr. later renounced.
A generation later, Delaware Attorney General Kathy Jennings on behalf of the citizens of Delaware will be the next to take the lectern before the U.S. Supreme Court to defend a system that increased federal mass incarceration by over 11,000% in a generation, was created by defenders of racial segregation who were in the centuries long business of labeling people as dangerous, and by a president hell-bent on crushing a movement against his policies by obstructing settled constitutional doctrines like the right to bail.
As Gerald Ford once firmly concluded, “Our long national nightmare is over.” Yet, when it comes to preventative detention policies that came from the same administration that had little respect for the rule of law, that nightmare goes on. Now, Attorney General Kathy Jennings has the power to stop it dead in its tracks; but, instead, she’ll spend Delaware taxpayer dollars to defend Strom Thurmond’s law.
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