Much has changed in the past few hours, but the next few months will see just how much. Notwithstanding the hyperbole that characterizes campaigns, the more thoughtful have wondered whether Barack Obama will be much more centrist than arguments to the contrary would suggest.
As the task of putting together the staff of a new administration begins, one question looms large for those of us on the criminal defense side of the courtroom. We love our country just like our adversaries. We believe in the Constitution, often to a fault. We want the best for the American people.
Will there be a seat for us at the table?
Over the past generation, discussion of crime and constitutional rights has ranged from tough to tougher. There has been no prominent voice suggesting that we have gone too far, have trampled rights under the weight of mindless platitudes and knee-jerk jingoism. The fervor with which politicians of all stripes have claimed support for the law-abiding over the lawless, knowing full well that this was never the real division, has frozen our voices out of the conversation amongst decision-makers.
Has time come for a more reasoned, rational conversation?
After eight years of a Republican administration, we’ve found it convenient to base our explanation for the Department of Justice’s harshness on extreme right wing politics. But in the next administration, that explanation won’t be available to us anymore. So will we need it?
It is hard to imagine that the next attorney general will be the reincarnation of Ramsey Clark, or that much of anyone would want such a thing. But a more balanced approach to law and order, one that stopped using the leverage of the entire federal government to beat the individual into submission, wouldn’t be so bad. Rather than the black and white vision of crime that has prevailed, a more proportional approach would be a nice change of pace.
Sure, it would require many Americans to do something that they haven’t done in many years: Think. Granted, there is always the possibility that they could hurt themselves, spraining that unused muscle by the sudden effort to flex it. But with the tenacity that characterizes the American spirit, they could push through the pain to arrive at the realization that balance and thought are good things.
There are many, many people amongst the criminal defense bar who have the skills and desire to help this country in a broad variety of capacities. We possess attributes that would help to achieve fairness and balance. We are every bit as much of the American spirit as those who slam the prison doors shut. We don’t expect to have the loudest voice in the discussion. Just a voice. Just a chance to add another perspective to thoughts about what our future should bring.
In the past, Democrats has been nothing more than Republican-lite on the issue of crime and punishment, civil rights and personal freedom. Perhaps America is ready for better this time. Let’s see if President-Elect Obama can find a place at his table for someone who has been relegated to sitting at the table farthest away from the jury.
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Will he offer AG to Hillary?
Will she want it?
I think it’s clearly no, and no. It’ll be interesting to see if he picks an independent type, or somebody in the Bobby Kennedy/Ed Meese model. (I’m guessing on the latter, given his choice for Chief of Staff.)
I think the set of congress persons that are soft on crime is an example of an empty set. The political costs of rationalizing the criminal justice system are still too high to expect much progress. OTOH the sentencing commission is creeping in that direction as we speak so there is some basis for optimism.
My view is that we have bogged down the CJS with returnees that cycle though the system with three years as a typical time scale. Most of the returnees are a much larger threat to their own safety/welfare than they are to the public safety/welfare. There are frequent CJS malfunctions because of the overload and some of them result in unjust outcomes.
I think the best way to rationalize the CJS is to reduce the overload by keeping the subjects that are not a threat to public safety from entering the system in the first place or by diverting them if they do.
The problems with mandatory minimum sentences are that they are a grossly oversimplified approach that applies to future crimes with unknown mitigating or aggravating circumstances and that can lead to an unjust outcome. They also put enormous pressure of the subject to plea bargain that can also lead to an unjust outcome.
An unjust outcome can result in a sentence that is too lenient or too harsh for the circumstances so one might think that both sides would want to fix the problem. Evidently that is not the case.
The pitch, of course, isn’t “I’m soft on crime,” but “let’s all be smart on crime.” For some reason or other, men in particular don’t like being described as “soft.” (Or, for that matter, “vaguely pear-shaped.” But I digress.)
Unjust outcomes in the sense of overlong senses? I’m a bleeding-heart radical moderate, so they bother me, but that’s a very hard sell.
It’s not smart, the argument goes, to spend $30K/year locking somebody up when you can reduce his chances of harming somebody almost as much by probation at a fraction of that, and give the taxpayers a break.
It’s not smart to put innocent people in prison, as that could happen to any of us; it’s foolish to flush billions down the War on Some Drugs when all that produces are criminal enterprises and hefty fees for criminal attorneys, etc.
That said, it’s the sort of sell that’s more effectively made by a conservative than a liberal.
(Err… I do believe all that, but I’m trying to differentiate between what I think is true and how I think people might be persuaded.)
“Smart on crime” does not appear to have much traction in Iowa and I have no idea how it has been received elsewhere.
We compensated persons that have been wrongfully incarcerated in Iowa and the list of such persons is very short. I have reviewed two such cases and it appears that the issue in both was not the innocence of the subject but instead misconduct or incompetence on the part of the prosecution.
In the general case an unjust outcome can be damage done to a persons reputation and family as well as sentences that do not fit the crime (too long/short) in cases where the subject is convicted.
If you use a business model to describe the drug trade there are producers of drugs, people who transport the drugs to the market, wholesale staff, retail staff and resale by customers. It is unrealistic to expect that people will stop using drugs for non-medical purposes. Making possession legal without doing anything about production, transportation and sales does not solve the problem.
I think legalization of drugs means that the government has to become involved in manufacture, transportation and wholesale of drugs to licensed retailers. I am not aware of any serious proposal that this be done.
“Smart on crime” has never had the traction that “tough on crime” has. Fear is a strong motivator.
The best hope is that given the economic situation, needlessly “tough” measures will be weighed against the hard costs. When times are flush, people may not worry so much about paying the price. When it’s schools or imprisoning people who pose no threat, they may start to consider a reallocation of resources.
Hunger can be a stronger motivator than fear. We’ll see how hungry people get.
Ironically, just saw this post from Doug Berman, Smart on Crime: Recommendations for the Next Administration and Congress. It’s a very good laundry list. We should check it in four years and see what we can cross off the list.
I agree that the schools vs prisons argument does have traction at the state level but I think some other approach is needed at the federal level.