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January 4, 2008

A huge win for sentencing hope over fear in Iowa

Though the Iowa caucuses obviously were about a lot more than sentencing law and policy, I cannot resist putting a sentencing spin on the results:

Of course, crime and punishment issues played a very minor part of the Iowa campaign.  But this fact is a itself an important: Clinton's political team, as noted here, last month "said that Obama's support for retroactivity in drug sentences would kill him with tough-on-crime white independents."  But, even though Iowa would presumably have lots of these (mythical?) "tough-on-crime white independents," Obama did pretty well there.  Similarly, Romney clearly thought he could score points with a "soft-on-crime" attack ad going after Huckabee, but the Iowa results suggest that strategy backfired.

As regular readers know, I have long believed that the politics of crime and punishment are much different now than they were in 1988 and 1992 presidential election cycles.  After the 1988 loss and the 1992 win, Democrats concluded that they had to get tough, and this was likely a sound political judgment in light of crime rates and other post-Reagan realities of that era.  But in 2008, a whole lot of voters — especially those under 30 — fear terrorists a lot more than drug dealers, and a message of re-entry hope now sounds a lot better than street crime fear.  (Or perhaps, after having downloaded songs illegally using Napster, and having engaged in "illegal" sex as teenagers, and having enjoyed pot and perhaps other drugs casually, many voters now strongly need to believe that, as President George Bush said in his 2004 State of the Union address, "America is the land of second chance.")

Like so many pundits this morning, I am surely trying to read too much into the votes of a few thousand people in Iowa.  Nevertheless, it seems fair to conclude that "soft-on-crime" attacks failed in Iowa, and I will be watching the campaigns and the results over the next few weeks and months to see if any shrewd strategists recognize that the progressive talk on crime and punishment may not just be possible, but may actually now be essential to political success.

January 4, 2008 at 08:17 AM | Permalink

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Comments

Did'nt Huckabee grant clemency to a rapist who went on to kill or rape again? How is that "progressive"? What do you think the rape victim felt and continues to feel?

ALso, didn't Huckabee grant clemency to many criminals over objections of victims and prosecutors? Again, how is that "progressive"? It seems that Huckabee's "religious convictions" trump law and order. Further, shouldn't the empathy really be directed at the victims of crime rather than the punks who commit it?

I guess I don't understand why you believe Huckabee or anyone else who let criminals escape from full accountability "progressive".

Posted by: gary | Jan 4, 2008 10:11:47 AM

gary, I think "progressive" is a euphemism for "liberal," which apparently is a bad word these days.

Posted by: Steve | Jan 4, 2008 10:29:40 AM

Gary, “Progressive” is one of those political terms that mean very little. Depending on my audience, I usually cast ideas and interests I am a paid to promote as “progressive” or “conservative.” “Accountability” is a similarly meaningless word, but when talking to non-lawyers sometimes it is necessary to use words that they like to hear.

But, the professor’s point is well-taken. Pardons and commutations are meant to adjust a legal regime which might not take into account whether post-sentencing all of the interests of justice are satisfied. A person that serves a long time in jail and betters his life probably is not serving any other good by staying in jail, especially if he will likely not harm others. The use of this executive power probably will encourage others to follow the same path, and make themselves better in prison.

Since the Victims Rights Industry doesn’t have much to do with actual victims (unless they make good spokesmodels), and protecting individuals from harm is nothing new in the criminal justice system, the “interests” of the victim are neither “progressive” or “regressive” or “liberal” or “conservative.”

Posted by: S.cotus | Jan 4, 2008 10:30:34 AM

"gary, I think "progressive" is a euphemism for 'liberal,' which apparently is a bad word these days."

As opposed to "conservative" which everyone just totally loves.

Posted by: S.cotus | Jan 4, 2008 10:32:07 AM

I've been noticing that it seems that crime is a much less pressing priority among voters. The crime rates are lower (here in Richmond, Virginia, traditionally one of the most dangerous cities in America, the crime rates were some of the lowest for the last 20 years) and the public does seem to have lower concerns. Of course, given that Iowa has one of the lowest crime rates in the U.S., it might be dangerous to infer too much - crime is generally not a high priority among the voters.

However, I don't think you can eliminate that crime fears aren't as important to voters. Traditionally in Virginia, the tougher on crime candidate always has had an advantage - but the last couple of election cycles here (in what is one of the most conservative states around and a state with a relatively high overall crime rate) tough on crime rhetoric was overshadowed by other issues. In the Governor's race in 2005, the Senate Race in 2006, and the General Assembly race in 2007 crime was pretty low on the list of priorities - and the Democrats benefited greatly. The fact that Virginia, one of the top death penalty states has an anti-death penalty Governor who vetoed expansions of the death penalty and then saw his party take control of one of the Virginia Senate speaks volumes for the decline of tough on crime rhetoric.

I expect that crime issues (other than perhaps terrorism) are going not be not nearly as important among voters in 2008 - Iraq, the economy, health care, education, and other issues all seem to be more on the voter's minds this year.

Posted by: Zack | Jan 4, 2008 12:28:26 PM

I guess I don't understand why you believe Huckabee or anyone else who let criminals escape from full accountability "progressive".

Being nicer to criminals is about 20% of the definition of progressive.

Posted by: anonymous | Jan 4, 2008 1:55:09 PM

I appreciate loaded political rhetoric just as much as the next guy. In fact, when speaking to non-lawyers it is often the only way you can elicit a response from them because they are simply not wired to see nuance.

For example, let us take a look at the above post.

“Being nicer to criminals is about 20% of the definition of progressive.”

The lay people seem to like the fact that candidates might be “tough on crime” and therefore not “nice” to criminals. But, they don’t really understand what this might mean.

This might mean that more taxpyaer money is diverted from other state-functions (i.e. fixing bridges, funding schools, stocking libraries and fisheries) to hiring police and prosecutors. Hiring additional government bureaucrats (which is what police and prosecutors are) doesn’t necessarily mean that more people are being put in jail, but it does give some people the freedom to catch “go after” more “crime” or decide to prosecute some behaviors that were generally not considered to be too much of a threat to good order. Contrary to the message sent to the masses at election time, prosecutors must make real choices about what their policies are towards prosecuting certain “crimes.” Rarely do tell the masses about these choices but everyone that matters know what they are. If the amount of money available for prosecution is not increased, any reallocation means that some class of “criminals” is being treated nicer after the decision. If the amount of money is increased, it likely means that taxes are raised or bridges are not being fixed.

Secondly, some views of “tough on crime” revolve around procedural protections of defendants. I never really understood this view. Apparently some non-lawyers believe that if criminal procedure is modified, “criminals” will see that it is “tough” and not commit certain crimes. Therefore, they seem to argue that, for example, criminal defendants should not have certain resources available to them during a trial. However, from my perspective, the only reason to make this argument would be as a backdoor way to reallocating prosecutorial resources. In essence, rather than telling the public that their bridges will be rickety, a “tough on crime” legislature can tell the public that they need not make any more sacrifices, because prosecutors will no longer have to contend with a judicial system that gives defendants as much of a fighting chance as possible.

And now we get to pardons. I don’t really know much about Huckabee (and having only voted for family members I don’t really care about the election). But I do know that other governors take the pardon power quite seriously. They figure that since they have been constitutionally allocated the power they must pay attention to each request for a pardon and decide it on its merits since if the framers of the (state or federal) constitution did not want them to have that pardon, they would not have given it to them.

Few, if any governors (or presidents – until Libby) have seen the pardon power as an alternative to criminal procedure or law enforcement. Instead, they saw it as an expression of executive will that further incarceration of someone would be unjust. There are many reasons why an individual person might be incarcerated unjustly, and not all of them can be remedied by the judicial system. Most of the time these reasons simply track the valid “penal” interests that are similar to the 3553(a) factors (which are really derived from the common law and various 8th amendment interpretations). Let’s take a look at them

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

It is quite possible, for a governor to look at a particular defendant and conclude that further incarceration would provide only minimal satisfaction of these interests.

The (A) ones are commonly satisfied by anything more than a few years in jail. Since nobody really wants to be in jail, I seriously doubt that anyone is going to commit a crime based on the hope that a *future* governor will think their sentence is unjust.

The (B) one are generally satisfied by the statutory punishments available. Again, since few defendants rely on the possibility of a pardon, it is doubtful that any particular pardon actually deters people, unless a governor or the president decides to pardon a class of people in jail, in which case he has determined that the “criminal conduct” shouldn’t really be punished at all. (Though there will still be collateral consequences.)

The (C) and (D) ones are usually very fact-specific. If a governor is taking his job seriously he should know what the chance of a re-offense is. Usually if the defendant is old, it isn’t a problem. This is where a governor can take his role most seriously.

Posted by: S.cotus | Jan 4, 2008 2:22:41 PM

I don't think any presidential candidate will make shorter sentences a centerpiece of his or her campaign. It's just self-defeating, because the folks who oppose those measures outnumber those who favor them.

I think you'd need to look at Huckabee's clemency record in its totality. There is a cost to society of releasing someone too soon, but there's also a cost of NOT releasing them. If he was right 1,000 times and wrong once, that doesn't make him a bad governor.

I do not regard prosecutors or victims as reliable judges of how long someone should be incarcerated. That's why the law does not put the decision in their hands. They have a viewpoint, they deserve a forum in which to express it, but not the last word.

Posted by: Marc Shepherd | Jan 4, 2008 2:32:09 PM

Doug, I think you've swallowed the Huck kool-aid. There are a lot of problems with these pardons, favoritism, insensitivity towards victims, etc. And, when a governor abuses the power, the natural reaction of his successors is to shrink down pardons. If you want to look at a well-run pardon/clemency program, look at Gov. Ehrlich of Maryland.

Posted by: federalist | Jan 4, 2008 2:44:01 PM

Just a note that in some (but not all) states, the governor can override decisions of the parole board. I guess this is sort of like granting a “reverse pardon.” Gray Davis had a blanket policy, it seems (which he denied in public, with a wink and a nudge) of denying parole to prisoners that committed certain crimes regardless of any other facts. So, Davis wouldn’t take his role as a sort of court of parole appeals seriously. So, the 9th orders a grants of the writ. So, now the Governator is effectively bound by the political pretenses of his predecessor.

Posted by: S.cotus | Jan 4, 2008 3:00:48 PM

And progressive Obama, he of the Sharptonian "just-us" system and reserving all of his sympathy for a criminal thug (Mychal Bell) instead of a victim of a nasty beating. This of course shows Obama to have criminal coddling in his make-up. You also have to wonder about the character of such a person.

Posted by: federalist | Jan 4, 2008 3:45:46 PM

> Few, if any governors (or presidents – until Libby) have seen the pardon power as an alternative to criminal procedure or law enforcement. Instead, they saw it as an expression of executive will that further incarceration of someone would be unjust.

I am not quite sure what the first half of the above statement means, but I feel pretty certain the second half renders the general thought false.

Like Doug, I enjoyed last night's vote from the standpoint of subjective interests and this is what I saw: One winner (Obama) says he will not be pardoning anyone like Scooter Libby and the other other winner (Huckabee) has a record for granting pardons, but has not committed to the idea of pardoning Libby either.

With all of the chatter about pardons in the water - and I don't think it is going to go away any time soon - I would really like to see Obama triangulate and make some explicit statements about his views of clemency and how the clemency power might relate to his views of sentencing. I think any well thought out statement on his part would 1) separate him from - and elevate him above - the Huckabee / Romney spat and 2) perhaps create an advantageous contrast to Mrs. Clinton (at least for those who are willing to recall her various adventures with pardons). So, I do think it would be worth his time.

Posted by: P.S. Ruckman, Jr. | Jan 4, 2008 3:57:45 PM

P.S. Ruckman, the pardon/clemency issue is irrelevant to most voters. It won't be a campaign issue unless an opponent pulls a "Willie Horton" on Huckabee. The Scooter Libby pardon, though most Americans opposed it, had its 15 minutes of fame, and is now history to all but legal scholars and pundits.

Posted by: Marc Shepherd | Jan 4, 2008 4:36:56 PM

Federalist, when the executive issues a pardon, it does not mean he is insensitive to the victim. It only means that he believes, in light of all the issues, that the perpetrator has paid the price, and that it's time to move on.

The pardon power wouldn't be in the constitution if it wasn't intended to be used sometimes.

Posted by: Marc Shepherd | Jan 4, 2008 4:43:41 PM

> the pardon/clemency issue is irrelevant to most voters.

Oh, I certainly agree.

> It won't be a campaign issue unless an opponent pulls a "Willie Horton" on Huckabee.

I thought Romney had in fact done that. And, again, I say the fun is not yet over.

> The Scooter Libby pardon, though most Americans opposed it, had its 15 minutes of fame, and is now history to all but legal scholars and pundits.

I generally agree, but I think you missed my point. Obama mentions Libby in his standard stump speech, regardless of the value that you or I might see in it. It is clear that he must now distinguish himself from and clash with Clinton. Are you telling me there would be no benefit in this process (from his perspective) in reminding people of the various pardon scandals in the Clinton administration?


Posted by: P.S. Ruckman, Jr. | Jan 4, 2008 4:55:32 PM

Marc, I think if you took a look at what I've said about pardons, then I think you'd realize that I am level-headed about them. But a lot of Huck's pardons are god-awful. There was more than a whiff of favoritism, there was complete ignorance about Dumond's penchant for violence etc. etc. (and yes I realize that Huck didn't make the decision re: Dumond). Moreover, Huck blew off the victims' families . . . .

Obama's "just-us" nonsense and blatant racial pandering in the Jena Six case show him to be a criminal coddler at heart and a man with little character.

Posted by: federalist | Jan 4, 2008 5:00:40 PM

“I am not quite sure what the first half of the above statement means, but I feel pretty certain the second half renders the general thought false.”

Mr. Ruckman, because you did not explain how anything I said was incorrect (even the parts you DID understand) you argument is not convincing at all.

>> Obama's "just-us" nonsense and blatant racial pandering in the Jena Six case show him to be a criminal coddler at heart and a man with little character.

And people wonder why we don’t let the lay people run the county. I like the idea that somehow people have the “heart” of a “Criminal coddler.” Since I rarely talk to non-lawyers (we have almost nothing in common culturally), I have no idea what it means, but I imagine it is some kind of farm equipment.

Posted by: S.cotus | Jan 4, 2008 7:00:09 PM

>>The pardon power wouldn't be in the constitution if it wasn't intended to be used sometimes.

I agree. However, the problem with that argument is that most people believe that Art. I, Sec. 8, cl. 11 probably is not meant to be used.

Posted by: S.cotus | Jan 4, 2008 7:18:48 PM

> Few, if any governors (or presidents – until Libby) have seen the pardon power as an alternative to criminal procedure or law enforcement. Instead, they saw it as an expression of executive will that further incarceration of someone would be unjust.

Well, I was hoping that, upon a re-read, you would see it yourself and clarify. The language "alternative to criminal procedure or law enforcement" confuses me. I don't think any president has ever viewed the pardon power in that manner, certainly not using that language. Can you explain that language better?

Second, today, most acts of clemency are pardons, not commutations of sentence (what you seem to be describing in the second sentence). So, it appears, from what I can make out of it, that you are quite misinformed.

Posted by: P.S. Ruckman, Jr. | Jan 4, 2008 7:57:11 PM

I saw the Romney anti-Huckabee ad on the pardon issue; I thought it was very ineffectively done. I mean, saying he pardoned so 1000-odd people, including 12 murderers, is simply not an effective way to bring home the problem to the average voter.

These videos, at least one of which is ameteur, are much more effective attack on Huckabee.

http://video.google.com/videoplay?docid=5465068388872972334&q=dumond&total=376&start=0&num=10&so=0&type=search&plindex=0

http://video.google.com/videoplay?docid=5465068388872972334&q=dumond&total=376&start=0&num=10&so=0&type=search&plindex=0

Posted by: William Jockusch | Jan 4, 2008 8:17:26 PM

Ok I think that a very large per cent of the population has sentencing and clemency on their radar screen. They are just not talking about it, but it may influence their vote. Tough and mean is not as attractive as it was in the past.

Everyone sees their own problems with criminal prosecution and sentencing as unique when in fact it is not. with almost one in every 100 citizens incarcerated, federal, state and local, this issue has lots of attention. People just think their legal problems or those of a family member or friend are an aberation and not indicative of wide spread legal overreach and a heavy legal hand. This perception is changing however.

A large percentage of these incarcerated folks are non violent and confined for life style decisions that have oozed their way into the legal system. It is a civil liberties crisis, and puts clemency, pardons and sentencing reform in the spot light. I just don't think that the general electorate can articulate it yet.

As for the Libby pardon - What are we thinking.

Grand juries are now part of the investigative process rather than a mechanism used to protect citizens from unjustified prosecution. Now it is morphing into a device to entrap.

This is what I consider to be a real civil liberties crisis.
Beth

Posted by: beth curtis | Jan 4, 2008 8:25:08 PM

I will say this: I see a very big difference between sensible compassion and what Huckabee did.

Several categories of prisoners might be released early in the name of compassion without much adverse effect on society. Examples include executive fraudsters, statutory rapists (particularly those who, had they not been incarcerated, would have married their "victims"), perjurers, and some drug addicts.

However, what Huckabee did was go out of his way to get a convicted rapist released in the face of multiple letters from other victims saying things like this:

I woke up to him in the dark with a knife at my throat. As soon as I opened my eyes, his first words were "you're about to be raped" . . .

That's not compassion, that's stupidity.

Posted by: William Jockusch | Jan 4, 2008 9:15:07 PM

Sentencing policy and race are very strongly coupled and it is not obvious how it would help a candidate to have a statement on sentencing policy or to talk about it in a stump speech. Two of the issues have been boiled down to sound bytes "mandatory minimum sentences" and "crack/powder cocaine disparity". Has anyone done a survey to find out what those sound bytes mean to the voters?

Most people (including reporters) don't know the difference between jail, prison and community based correction. There are people who think there are 7.5 million prison inmates in the United States. What candidate would risk talking about a topic where the reporters don't understand the terminology and the voters could either be clueless or experts.

Posted by: John Neff | Jan 4, 2008 10:03:51 PM

You are correct. Most people don't know the difference between local, state and federal incarceration. There will be candidates who will talk about this trend when they realize there is a political advantage. Jim Webb is taking a stab at it.

The Department of Justice reports that 7 million people are behind bars, on probation, or on parole. This is one in every 32 people in the US. I haven't heard that news media has reported this number as prison inmates, but I'm sure it's possible. Facts and statistics are used so carelessly.

This per cent of the population interfacing with law enforcement is stunning to me, and I don't see how we can tolerate the trend - if only from an economic stand point. It really speaks to freedom and government control.
Beth

Posted by: beth curtis | Jan 5, 2008 1:30:10 AM

Beth I agree with you. It's gone too far.

But we need to have some sense about the kind of criminals we let out.

Hint: if you get multiple letters from different victims saying stuff like this, then it's not the right one to let out.

I woke up to him in the dark with a knife at my throat. As soon as I opened my eyes, his first words were "you're about to be raped" . . .

Posted by: William Jockusch | Jan 5, 2008 5:16:02 AM

Ok I think that a very large per cent of the population has sentencing and clemency on their radar screen. They are just not talking about it, but it may influence their vote. Tough and mean is not as attractive as it was in the past.

I'm afraid that is a bit naive. If you ask voters what issues they're worried about, very few will say "sentencing and clemency." If you allow them to name their five top issues, very few will include it in their top five. If you ask whether we ought to be reducing sentences and granting clemency more liberally, very few will say yes. If you have a candidate who has already done so, or can be portrayed as having done so, most voters will not view it favorably.

It is, quite simply, a losing issue—just like abolishing social security.

Posted by: Marc Shepherd | Jan 5, 2008 2:05:49 PM

Marc

You are right - voters are certainly not stating that sentencing and clemency are in the top five or even top ten of issues they care about.

I just believe that it is an unspoken concern and that most politicians are lagging in their understanding of where the public sentiment really is. This is certainly true of the results in Iowa. Clinton and Romney both tried to be perceived as tough on crime - or just tough generally. Neither one seemed to get much traction from this. I think there is a libertarian dynamic out there that surfaces now more frequently.

Additionally to William, violent criminals and crime will never be politically popular. We just incarcerate such a large percentage of the population with no violence in their past and it is becoming a financial and ethical problem.
Beth

Posted by: beth curtis | Jan 5, 2008 2:41:30 PM

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