The Pew report generated a lot of discussion, including lawprof Doug Berman’s support for a Kentucky law favoring asset forfeiture in an effort to reduce the sky-rocketing cost of imprisonment. While agreeing with Doug about mass incarceration, I took strong issue that asset forfeiture was the answer. In response to my post, Doug and I debated the issue at some length.
After seeing that we were both married to our respective positions, and recognizing that there was nothing new to be said, I concluded my final comment by saying that we would just have to agree to disagree. This usually signals the end of the discussion, but not this time. Instead, Doug responded, including the following highly provocative challenge:
I am not content to just “agree to disagree (strongly) on this one.” Anyone not seriously thinking about VERY different solutions to mass incarceration, in my mind, is a BIG part of the problem. (And, as you should know, most criminals in prison now don’t have a car or a house or a job to forfeit.) Why are you more sympathetic to people with property who commit crimes than to people without property who commit crimes.
I have long believed that liberals get in the way of SERIOUS game-changing criminal justice reforms more so than conservatives. This discussion confirms this belief. As I suggested at the outset, I think this is ultimately more sad than scary, because it shows that liberals are so brainwashed or beaten by current realities that cannot ever imagine a different world in which sounder criminal laws come to dominate.
The gauntlet has been tossed. Up to this point, the focus of the discussion on my part was that asset forfeiture, one of the most insidious and abused fictions ever devised by the law, was not the answer to the agreed-upon problem of mass incarceration. Doug, in essence, viewed the problems with asset forfeiture as being mere tweaks to be corrected once we opened our mind to it as an alternative to incarceration. Note: this post is not intended to revisit the issue of whether asset forfeiture is a good or bad thing. That’s what this post was about.
But these two paragraphs raise an entirely different issue. While I am unclear how this is a liberal/conservative issue as framed, that is the way Doug has posed it. The argument that by rejecting asset forfeiture as a solution means that we are not thinking about “VERY different solutions” is a non-sequitur. We’ve given enormous thought to different solutions, some obvious and some pretty far out. My point was that the particular “solution” under discussion, asset forfeiture, was a bad one. A VERY bad one.
But Doug took this discussion to a much deeper place, where my rejection of asset forfeiture became a condemnation of liberals for their refusal to think outside the box, and therefore responsible for the current state of mass incarceration. Liberal are “so brainwashed or beaten by current realities” that we are responsible for unsound criminal law. Conservatives, like Doug, on the other hand are open-minded to new solutions and trying hard to create a world where sound criminal laws dominate.
What I found so jarring by Doug’s position is that we share a concern for the over-incarceration, over-criminalization of American society. We similarly share a concern about the disparate impact of criminal law on minorities. There is much we agree on. Yet, it never occurred to me that beneath these areas of agreement, Doug harbored such a smoldering hatred of liberals. Indeed, but for a few odd choices, one might well have concluded that Doug was quite the liberal himself. And everybody is entitled to make some unexpected choices from time to time.
But Doug has come out clearly as a liberal-blaming conservative, and challenges us libs with being small-minded, unimaginative, brainwashed and beaten. I’m not buying, and I’m frankly shocked by the depth of Doug’s hatred of liberals and the nature and scope of his attack.
Just because we agree on the problem does not mean that we have to accept any potential “solution” that comes along. By disagreeing with Doug’s acceptance of asset forfeiture as a Utopian ideal, I am not prepared to accept being pigeonholed. Mass incarceration is a very real problem. Asset forfeiture is a very bad solution. We need to solve the problem, and Doug is right that we all need to open our minds to alternatives that fall outside the realm of the usual answers. By the way, asset forfeiture is by no means a novel idea, having been enjoyed and abused by the feds for decades without any positive impact on the mass incarceration problem. That Kentucky has just discovered it is, well, a commentary on Kentucky and little else.
But in our zeal to find alternatives, seizing upon solutions that are worse than the problem is not progress. Legislatures tend to do that a lot, coming up with a brand new idea that ultimately proves to exacerbate the problem rather than fix it. In New York, we have the Rockefeller Drug Laws, a brilliant solution that has turned into a monumental disaster. Gov. Nelson Rockefeller was, of course, a compassionate conservative.
Doug has, in effect, accused me of liberal myopia because I do not accept his view that any alternative to mass incarceration is a good one. Since Doug’s views don’t reflect mainstream conservatism, it would be unfair to make any accusations against conservatives based upon Doug’s comments. But I have one to levy directly at my accuser: Professor Douglas Berman, you are just a liberal in sheep’s clothing who is grasping at straws to find a cure to the societal nightmare of over-incarceration. Stop fighting it and come over to the side of truth and justice. We will forgive you this one mistake.