The Circle Closes, At Least For The Moment

Not long ago, I received an email from a fellow at the Heritage Foundation asking if I would be interested in working with them.  The Heritage Foundation? A conservative think tank?  Me?  I couldn’t pass up an opportunity to find out what this was about, so we spoke.  The message was clear: They were into overcriminalization, and they wanted me to work with them. 

One of the names thrown at me was that of former Attorney General under Ronald Reagan, Ed Meese.  Many years earlier, I met with another former Attorney General, Ramsey Clark, who served under Lyndon Baines Johnson, also about working with him.  The two could not have been more different in their tenures.  How was it possible that now, almost 30 years later, a common thread existed between Meese and Clark?

Adam Liptak at the New York Times writes that the left and right have come together over a common enemy, overcriminalization.

“It’s a remarkable phenomenon,” said Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers. “The left and the right have bent to the point where they are now in agreement on many issues. In the area of criminal justice, the whole idea of less government, less intrusion, less regulation has taken hold.”

Yet another temporal oddity, Norm’s office was down the hall on the 13th Floor from my first office, when he was partnered with Frank Gould and spent much of his time defending marijuana cases.  He was a young lawyer back then, though much older and more experienced than me.  And here he was, talking about how our old struggle somehow stretched far enough to take in our former nemeses, Ed Meese and Dick Thornburgh.  It would have been fantasy, a joke, to even think this day would come.

Edwin Meese III, who was known as a fervent supporter of law and order as attorney general in the Reagan administration, now spends much of his time criticizing what he calls the astounding number and vagueness of federal criminal laws.

Mr. Meese once referred to the American Civil Liberties Union as part of the “criminals’ lobby.” These days, he said, “in terms of working with the A.C.L.U., if they want to join us, we’re happy to have them.”

But as Radley Balko points out, let’s not hold hands and sing Kumbaya too quickly.

If Meese had had a late in life epiphany on the proper balance police and prosecutor powers and the rights of the accused, I’m happy to hear it. But this is just inaccurate…

In fact, browsing the index of Smoke and Mirrors, Dan Baum’s excellent history of the drug war, during his time as Attorney General, Meese pushed for, among other policies….

• Expansion of federal asset forfeiture laws, including giving police the ability to seize before an indictment, and “substitute assets” provisions.

• More power to hold suspects without bail.

• Repeal of the Miranda requirement and the Exclusionary Rule.

• The power to issue administrative subpoenas to require defense attorneys to snitch on their clients.

• The federal reporting requirement on cash transactions over $10,000.

• Stripping drug suspects of all their assets so they can’t afford to hire a defense attorney.

This isn’t about Ed Meese having a late-life epiphany.  This is at best a marriage of convenience, a convergence at the fringe of overlapping interests where, for a brief and shining moment, the rhetoric of both sides coincides.  One side concerns itself with the overcriminalization for all, together with the concomitant ignorance of constitutional rights, the other relies on the United States Chamber of Commerce to represent its views that federal regulation, the overreach of government into the lives of businesses, is ruining the land of opportunity.

Believe me, if both sides brought their respective clients to a party, their defendants wouldn’t slow dance with each other. 

It’s not that this mating of odd bedfellows doesn’t serve the interests of both sides, at least for the moment.  And it’s not that there isn’t merit to the arguments made at the overlap.  It’s that no one should mistake that they are both on the same team.  The left and right will hold hands only as long as there is a common enemy, but the nature of each hasn’t change a bit. 

The point is best shown by Liptak’s explanation of the genesis of this pairing.

The roots of the conservative re-examination of crime policy might also be found in the jurisprudence of Justices Antonin Scalia and Clarence Thomas. The two justices, joined by liberal colleagues, have said the original meaning of the Constitution required them to rule against the government in, among other areas, the rights of criminal defendants to confront witnesses.

“Scalia and Thomas are vanguards of an understanding by the modern right that its distrust of government extends all the way to the criminal justice system,” said Douglas A. Berman, a law professor at Ohio State University [not to mention blawger at Sentencing Law and Policy].
But as our justices have made painfully clear, it’s not that they don’t repose ultimate trust in our “new professional” cops, or note an exception to the Fourth Amendment that doesn’t meet their approval.  If these are the vanguards, as Doug says, then I don’t want to stick around for Roberts and Alito bringing up the rear.

The distinction, unmentioned in Liptak’s piece, is that the right wants to cleanse the federal criminal law of the thousands of regulations that criminalize free market conduct by business, and liberate corporations from the shackles of a system that penalizes the good American businessperson as if he was some common street thug. As for the common street thug, he can rot in prison forever, for all they care.

While the two sides may share common rhetoric about overcriminalization, there’s really very little, if anything, that they truly agree upon.  The right has no interest in the plight of the common criminal under traditional criminal law, and the left isn’t all that worried about CEOs going to Club Fed for failing to deliver honest services.  But it’s better that they work together, if only for the moment, to stem the tide of ever-increasing criminalization than not.

I told the fellow from the Heritage Foundation that he was free to parse my posts here for whatever served his interests, no charge.  But I wasn’t comfortable hooking up with Ed Meese, no matter how enlightened he’s suddenly become.  I thought of the old story of the venomous snake, near death and cared back to health by the kindly old man.  As soon as the snake was well, he turned and bit his savior.  The old man asked as he was dying, “Why would you do this to me after I saved your life?”  The snake responded, “It’s my nature. You knew what I was when you took me in.”

14 comments on “The Circle Closes, At Least For The Moment

  1. Jeff Gamso

    From the hang-’em-high right (the Criminal Justice Legal Foundation), Kent Scheidegger makes the same point about this just being a marriage of convenience and that Liptak doesn’t really get that our fundamental differences remain absolutely fundamental. He says that until our side changes, we won’t really be together except on trivia.

    At least from Meese’s point of view, And notice that it’s a one way street. He is happy to have the ACLU join him and his folk at Heritage. He isn’t offering to join with the ACLU.

  2. SHG

    I can’t tell you how much it scares me when Kent and I agree.  What’s next, Andy McCarthy invites me for a sleepover?

  3. SHG

    I suspect that most criminal defense lawyers are well aware of Justice Alito’s inclinations, John, thus avoiding the need to provide examples of old stories, particularly ones that are well known.

  4. David Sugerman

    I was holding my breath. Needlessly, of course. Perhaps Ed Meese campaigning against over-criminalization is simply another sign that the apocalypse is upon us. Oh snap, it’s become accepted fact that Reagan was a great American president, so how could we be far from the end?

  5. John Neff

    If they were serious you would have already been called by the Heritage folks asking you for a contribution to the ACLU.

  6. Jdog

    I dunno. I thing there’s a distinction between a friendly marriage of convenience and being head-over-heels-Ross-Loves-Rachel smitten.

  7. Sojourner

    Great post, thank you. On a hopeful note, at this moments in history a lot can be accomplished on certain issues. It’s how the concept of 21st century slavery and human trafficking went from being completely (heartbreakingly, to those of us who cared) ignored to being something that has thousands of little ol’ church lady activists. Ten years ago, I never could have imagined seeing billboards advertising how to recognized if someone is trafficked – now I see them in Houston every day. I’m hoping for similar progress on the concept of over-criminalization. It’s way overdue.

    Scott, I love your blog. You’re a prince, a scholar, a rabble-rouser, and a sage. God bless you.

  8. John

    Your probably right about lawyers knowing this, but I doubt a lot of working class people know just how bad this guy is.

    Anyway I didn’t want to post another link, I know it eats up your bandwith.

    BTW thanks for the insight into some of this. I have been following you on Twitter, to get a heads up for when to read some of your posts.
    Very interesting!

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