Lawprof Bill Stuntz has posted a very provocative piece entitled “Who is Responsible for America’s Swollen Prison Population?”  Stuntz uses a somewhat limited statistical analysis to show that while prison population has grown under Republican administrations, it has ballooned under the Democrats.

Stuntz’s conclusion is that, without absolving the Republicans of responsibility, the prisons are overflowing because of the Democrats:

Notice the nature of that political exchange. For Republicans to win votes on crime, all they need do is talk about it: the Willie Horton ad that helped turn the 1988 election is a prime example. No Clinton-style inoculation is needed. For Democrats to win those same votes, they need to take the kind of action that shows their toughness: hence Rector’s execution. Rising imprisonment has been the price Democrats have had to pay in order to win power and enact the policy changes they really want.

Before anyone jumps down Stuntz’s throat because they just don’t like this outcome, give it some thought.  While the Dems have championed some liberal social causes, such as pro-choice and anti-death penalty, when is the last time you heard any Democrat running for office proclaim that personal freedom trumps the “war on crime?”  As Stuntz says, the Democrats have taken up the tough-on-crime banner and run with it.  Nobody is going to Willie Horton them again.

Note that Democrat, in this analysis, is not the same as liberal.  Democrats shed any pretense toward liberal ideology long ago when it comes to crime as the price of getting elected.  My elected official friends tell me that if they don’t get elected, they can’t make a difference.  But if they abandon principle to get elected, they don’t make a difference anyway.  This leaves us with dumb and dumber, er, tough and tougher.

When the Republicans turned the word “liberal: into an epithet during the Reagan candidacy, the Democrats were blind-sided.  They didn’t know how to deal with it, and got slaughtered for their ineptitude in deflecting the Republican assault. 

The Reps followed up with the Willie Horton ad, one of the best political tools every employed, that played into the fears of Americans.  Dukakis’ reaction was put on a tank helmet that made him look like a smurf.  Rather than seize the memory of our Revolutionary forefathers, their struggle for freedom against a despotic monarch who would subjugate the colonists through force, the Dems began chanting their new mantra, “I ain’t no liberal pansy criminal lover.” 

Prove it?  And they did.  Clinton executed a mentally retarded man.  As Stuntz contends, it wasn’t good enough to say you were tough on crime, because the Republicans owned that phrase.  The Democrats had to out-tough the toughest to show their bona fides.  You may not like the implication that the Dems are responsible, or that the Reps not so much, but his statistics comport with impartial observation.  Like it or not, this was the price that the Dems paid for getting elected.

This is why, from a criminal justice perspective, it’s hard to find much to praise about our Democratic candidates.  They do not reflect a party that believes in the Constitution, personal freedom or civil rights when it comes to criminal justice.  While the Republicans don’t either, it just leaves us with no champion.  We’re on the outs again with everybody.

For a couple of decades, I’ve been waiting for someone to stand up and say, “I support the Constitution and the Bill of Rights, even if it means that we don’t execute every alleged criminal for jaywalking.”  I’m still waiting.  Hillary and Barak, it’s not too late, you know.  But then, you guys want to get elected, and nobody gets elected in America without being tough on crime.

H/T Orin at Volokh