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May 1, 2008

Stuntz nails (some) reasons why Democrats are perhaps most responsible for modern mass incarceration

Providing a very valuable set of political insights during this political season, Bill Stuntz has this must-read post titled "Who is Responsible for America's Swollen Prison Population?".  Here are excerpts:

Who is responsible for the now-famous "punitive turn" in American criminal justice?

The best answer is probably: everyone in a position of political or legal authority over the last thirty years.  But I'm pretty sure one common answer — we have a huge, disproportionately black prison population primarily because of the policy choices made by conservative Republicans like Ronald Reagan and George W. Bush — is wrong.  The political right plainly contributed, and contributed a lot, to the generation-long run-up in our prison population.  But the political left probably contributed even more....

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.  At least, that story seems to fit the scattered examples listed above.

There is a lot more great stuff in Bill's post (and also in comments appearing there and at Volokh), but I want to take issue with this one specific assertion: "Rising imprisonment has been the price Democrats have had to pay in order to win power and enact the policy changes they really want."  I would change the phrase in bold to say "the price the Clinton wing of the Democratic party is always eager to pay to win power."  Indeed, as Stuntz highlights in his post, elected Democratic officials (who are mostly white and rich) do not really pay any direct price from rising imprisonment; the real costs of rising imprisonment are borne mostly by poor and minority polulations and their families.

Though I may be politically naive, I strongly resist the conventional wisdom that being tough, tougher and even tougher with imprisonment terms is the only way for Democrats to win political power, especially in the context of non-violent crimes.  Nevertheless, as Senator Hillary Clinton's expressed opposition to crack retroactivity highlights, the Clintonian (and perhaps broader Democratic) eagerness to sell out poor and minority populations and their families through criminal justice politicking is not likely to change anytime soon.  Sigh...

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Prof. Berman writes: "Though I may be politically naive, I strongly resist the conventional wisdom that being tough, tougher and even tougher with imprisonment terms is the only way for Democrats to win political power, especially in the context of non-violent crimes." (emphasis mine)

That's is right, of course--there may be other ways, but that way has worked, and that is the way that at least some of the people in charge have chosen.

(I dispute the equation of "tough on crime" with "selling out poor and minority populations"--the only people who have been "sold out" are criminals and their families, though the argument can be made that they deserve better).

What would you suggest as an alternative, though? Clinton being "tough on crime" was a way to make common cause with people on the other side of the aisle and also a concession that could be bartered for other concessions on the other side. I'm not sure what a better "bridge" issue would be.

Posted by: | May 1, 2008 4:39:42 PM

I think religion and guns and smaller federal government are three (of many) potential bridge issues, and they also happen to be central to the Framers' vision of our nation.

Bartering about incarceration rates and lengths involves bartering human liberty, a value which I think this country should hold uniquely sacred and yet violates regularly for political points.

Also, the Ds could get tougher on crime without a focus on imprisonment --- death penalty, severe economic sanctions, shaming punishments could also send a tough message without extreme sacrifices of human liberty.

Posted by: Doug B. | May 1, 2008 5:17:23 PM

How about limiting the federal drug laws to allow for state experimentation with alternative enforcement regimes? I would think that the states' rights contingent of the GOP would have no problems with that. Unless, of course, it is all smoke and mirrors, which I think it is fair to say it has been. See, e.g., Terri Schiavo, partial birth abortion, federal marriage amendment, etc.

Posted by: Alec | May 1, 2008 5:55:24 PM

Stuntz is absolutely correct that Democrats are more responsible than Republicans for the "tuff on crime" turn in the last two decades. Criminal justice issues simply don't break down along partisan lines.

I can only speak for Texas, but here there's a predictable pattern where most major reform efforts have been led by Republicans, like House Corrections Chairman Jerry Madden and his predecessor Ray Allen, and they tend to be able to draw about 40-50% of their fellow Rs with them.

Once they step forward, and ONLY then, most Democrats are willing to get on board. We have one Democratic state senator, John Whitmire, who's a consistent reform advocate, and other than than nearly all the important reform leaders in Texas have been Republicans.

Not sentencing but related and even more ironic, a House committee led 7-2 by Democrats was an utter killing field in 2007 for innocence related bills, almost entirely because of fears they'd be labeled soft on crime.

Posted by: Gritsforbreakfast | May 1, 2008 6:56:28 PM

It is also possible the Republicans were happy to hijack the victims' rights movement to promote tough on crime (really an attack on liberalism overall). Whatever the Republican's ulterior motives were, Democrats, with the rise of civil rights of women and victims, were happy to lock step (Benthamite at the expense of Blackstone). It is only now that Conservatives see the dangers to their own interests and at the same time they now get the political advantage of distinguishing themselves from Democrats, who they can blame for callus and irrational zero tolerance in the name of victim's rights. See From Blackstone to Bentham: Why Wrongful Conviction Is On The Rise.

Posted by: George | May 1, 2008 11:48:23 PM

The problem with blaming the Democrats for the increase in incarceration is that it ignores that it is the Republicans (and their allies in the right wing attack media) who would call the Democrats soft on crime in the first place (see experience of Michael Dukakis and going further back look at Nixon's Southern Strategy in 1968). So, its really a which came first question on who should get the blame. Which came first - Republican attacks on Democrats as being soft on crime or Democratic waffling on crime to avoid being called soft on crime? The answer is pretty self-evident.

Both parties share the blame for the appalling incarceration rate, but attempts to pin the blame on the donkey seem to ignore that the Republicans were going there first and that it is the Republicans who raised the attacks which led to the Democrats joining the tough on crime bandwagon. Blame the Democrats for failing to come up with a defense for being attacked by the Republicans as being soft on crime other than raising prison terms and generally supporting the death penalty, but don't pretend that they created that situation.

Posted by: Zack | May 2, 2008 11:16:00 AM

Zack apparently forgets the bad old days when violent criminals were routinely released after short times in jail only to, quelle surprise, commit more violent crimes. The GOP responded to public outrage, and the Dems were johnny-come-latelys. So Dems had to get the zeal of the converted.

Posted by: federalist | May 2, 2008 11:50:35 AM

Federalist, that begs the question on whether the "public demand" started due to Republican attacks on Democrats as being soft on crime. "Grassroots" opposition is easy to create for people who can count on the media's credo of "if it bleeds, it leads" to put the fear of crime (or often as the case really is, the fear of criminals) into voters heads.

What can be said for certain as a matter of historic record that the modern use of "law and order" tough on crime campaigning arose during the 1968 Presidential election with Nixon's Southern Strategy. Of course, its true that the Southern Strategy was as much aimed at George Wallace's American Independent Party campaign, but that only shows the often not too subtle bigtory which is often behind politicians using the fear of crime to get elected.

Again, if you look at the historical record it makes no sense to blame the Democrats for anything other than being spineless (an apt description of Clinton if there ever was one) in the face of GOP attacks. The real culprit is the American people for letting hysteria and fear tactics over crime win out over reasoned debate - as Pogo said "we have met the enemy, and he is us." Why blame the politicians who were just doing what the voters told them they wanted?

Posted by: Zack | May 2, 2008 1:35:19 PM

Zack hit the mark when he said the politicians did what the voters said they wanted. The voters said they wanted to lock up violent criminals, drug traffickers and drunk drivers and they have been along with a lot of folks who are mentally ill and addicted to drugs.

Both parties have played the "soft on crime card" and I don't understand why the view is that only Republicans use that tactic and the reason the politicians use it is because it is very effective. I also think that the politicians think they are realists and not spineless when it comes to criminal justice legislation. Crime victims can become very angry and vindictive and they have a lot of relatives and friends and criminals have no friends.

Posted by: John Neff | May 2, 2008 2:09:48 PM

I think religion and guns and smaller federal government are three (of many) potential bridge issues, and they also happen to be central to the Framers' vision of our nation.

I hardly knew you were an Orginalist.

Maybe incaceration rates are high becasue violent crime during the 1980s was so bad and there's no looking back.

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Posted by: James | May 3, 2008 7:22:28 AM

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