Are Liberals Responsible For Mass Incarceration?

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. 

10 thoughts on “Are Liberals Responsible For Mass Incarceration?

  1. Gritsforbreakfast

    “Liberals are ‘so brainwashed or beaten by current realities’ that we are responsible for unsound criminal law.”

    Unfortunately, I not only think that’s true, IMO it doesn’t go far enough. In the comments on Grits recently I posted this observation on the subject:

    “The fundamental dynamic in criminal justice politics is a stable, long-term coalition of Big Government Liberals – who think every problem can be solved through expanded control of the state over the individual – and Tuff on Crime Conservatives. (Ann Richards was a bigger prison builder than George W. Bush in Texas, for example.) That bipartisan/non-partisan faction continually beats down more libertarian and humanist wings in both parties, no matter who’s in power.”

    The lens of a left-right continuum through which modern politics is usually analyzed dates from the French Revolution and doesn’t accurately convey political divisions on criminal justice issues.

    There are many people identified as “liberal” in the current political spectrum with whom I disagree strongly on crime and punishment matters, while we have Republcans in TX who are better on these topics than most Democrats (who after all controlled the TX Legislature from the Civil War until 2003, and are responsible for most of our state’s notoriously draconian laws).

    I don’t necessarily want asset forfeiture expanded willy nilly, and it’s frequently abused in drug war contexts. On that debate I probably fall in your camp, SHG. But as for whether liberals are “responsible for mass incarceration”? Absolutely!

  2. SHG

    Be cautious about confusing the terminology.  Democrats and Republicans are not synonymous with liberals and conservatives.  Political party labeling uses these words without any regard to principles.  Don’t get sucked into the trap of confusing characterizations with principles.  By jumping back and forth between labels of principle-based positions and political parties, your observations are hard to connect together.  You are mixing apples and oranges, although I don’t think that was your intention.

    And Texas Democrats doesn’t translate well to politics in foreign countries, like the U.S.

  3. Gritsforbreakfast

    I’m not confusing terminology, just placing it in context. It’s often the “liberal” wing of the Ds (like Ann Richards in TX, Cuomo in NY) who support penalty increases, more prisons, etc. There is no problem a true Big Government Liberal thinks can’t be solved through greater state control over the individual, and you can’t get much more control than locking someone up in prison.

    It’s not just Texas, either. Take a look at the enhancements from the last NY Lege session and see which party sponsored more: Usually it’s not only Ds, but the most liberal Ds, both because it fits their overarching ideological approach and because they’re trying to create a public record in case someone accuses them of being “soft.”

  4. SHG


    You’re still talking about political parties, not ideologies.  The political parties have long abandoned any principled connections.  Republicans have ballooned the size and cost of government.  Democrats support the death penalty and enhanced punishments.  Neither reflects conservative or liberal principles anymore.  They reflect nothing more than political expediency.

    See  Mark Bennett’s post about the issue of defining terms.  Politics and ideology are entirely separate issues.

  5. Gritsforbreakfast

    So liberals don’t exist in the real world? Are they only an ideal, a phantom? Who are some liberals who believe as you describe, so I’ll know who we’re talking about. Perhaps you’re talking about “classical liberalism”? To me, today that’s a small-l libertarian.

    Political liberals are the liberals there are. Most are not libertarians. They tend to support top-down big government solutions over prioritizing the rights of the individual. The logical extension of that ideology results in coercion of people who don’t conform to societal mores, with deviance punished through increasingly total control of the individual, up to and including incarceration, without ANY quibble from liberal ideology.

    There’s nothing illiberal about the drug war, for example, or massive immigration detention camps. In general liberalism can and has been used to justify mass incarceration everywhere it presents itself, starting with the first “penitentiaries,” created by Quakers as supposed reform vehicles.

    Liberals LOVE incarceration. It’s ever been thus. I’m not sure what would cause you to say otherwise.

  6. SHG

    Sorry Grits, but I can’t hit a moving target.  If you get to redefine liberals whenever you want to be whoever you decide, then liberal has no meaning and it becomes whatever you personally decide you want it to be.  If that’s what you mean, then you are absolutely right. Liberals (whoever you decide they are) can be whatever you decide you want them to be.  When words have no meaning, there is nothing to discuss about them.

    There is an ideology of liberalism.  It is not defined by political parties, or anybody you know personally.  It is an ideology.  Up to now, you have consistently confused liberals with Democrats, even though you keep insisting that you’re not.  I also can’t argue with that, because you can insist that black is white all day long, but it’s still black.  I can’t change it. You can’t change it.  No amount of arguing about it is going to change it.  It just is what it is.  So forget about ideology, and tell me who you have decided is a liberal, who will naturally be someone who loves incarceration since that proves your point. 

    Liberals LOVE incarceration. It’s ever been thus.

    Since you say so, it must be true.  So I’m going to take a walk over the kitchen, grab a water, and whistle as I walk down the hall, away now. 

  7. Mark Bennett

    Scott (Grits) isn’t saying that black is white; he’s saying that black smells like peaches.

    “Liberals” used to (pre-Eisenhower?) be those who favored maximum liberty. Back then, there were perfectly good words to describe people who “support top-down big government solutions over prioritizing the rights of the individual.” Such people came in two varieties: socialists on the left, and fascists on the right. They still do.

    Both were, and still are, equally lethal to liberty. Now, though, the fascists call themselves “conservatives” and the socialists call themselves “liberals” or sometimes “progressives” and both claim to prioritize the rights of the individual. That’d be the end of the definitional question — meanings change, after all — except that, unfortunately for the cause of linguistic precision, many people who are actually interested in liberty call themselves conservatives or liberals as well.

    You might not have noticed this, but the self-styled “conservative” fascists are running the show at the moment from Houston to Moscow. We gave them power because we were scared and they offered us security and stability . . . timely trains, metaphorically.

    They’re making quite a hash of it.

    Yet somehow, because of the right wing’s marketing efforts, it’s better to be a fascist, even a fundamentalist theocratic fascist, and call yourself a “conservative”, than to be a “liberal” of any sort — even a liberty-loving libertarian liberal.

    That’s why I’m banning the use of the words “liberal” and “conservative” from my blog as meaningless epithets unless their users provide meaningful definitions. I suspect that we can find a more accurate substitute for either of these terms in most any context.

  8. Gritsforbreakfast

    Please name one “liberal” opposing mass incarceration so I’ll know who we’re talking about. Point me to them! Anyone! I’m out there on the front lines in the political realm, and I see as many or more “conservatives” supporting reform as “liberals,” though Mark’s right the definitions are essentially outdated and useless.

    I’m not confusing liberals and Ds, I’m telling you that in practice THE MOST LIBERAL Ds support mass incarceration, and not just in TX, but also in NY. I’ve given concrete examples (Richards and Cuomo), but because they exist in reality you say they’re not valid. I’d come up with a theoretical example, but then who would care?

    Call it liberalism, socialism, whatever you want: When self-described liberals have been in power in America in the last half-century, the incarceration rate has increased dramatically at both the state and federal levels. That’s not a right wing marketing message, it’s God’s own empirical truth, however you define the ideology theoretically.

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