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November 5, 2008

Taking a break for election reflections

I could keep blogging up a storm today with more thoughts about what last night's election results might mean for sentencing law and policy.  Though some others are already talking about what a new Obama administration might mean for drug crime policy and the death penalty, there are so many other "inside baseball" topics for discussion. 

For example, on the sex offender front, might implementation of the Adam Walsh Act dealing with national sex offender registration change?  On the federal sentencing front, might district judges now be even more willing to depart from the guidelines because they will not fear backlash from the Justice Department and Congress?  Will the agenda and personnel on the US Sentencing Commission change dramatically.  Will the next Attorney General and the next Solicitor General be fans of broad interpretations of the Sixth Amendment and the Eighth Amendment (not to mention the Second Amendment)?

I could go on and on and on, but I am eager to provide a relatively clean space for readers to react and reflect on what happened last night and the future of sentencing law and policy.  Go for it in the comments, dear readers (while I enjoy an needed afternoon outside on a spectacular fall day).

November 5, 2008 at 12:40 PM | Permalink

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Comments

As it is a terrible fall day here with winds in excess of 50 mph, I'll bite.

My own opinion is that Obama is going to be a lot tougher on crime then people think. A lot of the Republican campaign rhetoric was just that, rhetoric, and not to be taken seriously. For example, on sex crimes I imagine that Obama is going to be a lot tougher than Bush ever was. It's not just the fact that he has two young daughters but Oprah has his ear and this is an important issue for her. Much of the resistance to extreme Sex Offender legislation has come from a libertarian perspective, a perspective to which Obama has shown no sympathy. Put another way, while Obama may be a "liberal" he is not an EFF liberal. Indeed, when you look at all the early talk of appointments, most of the names suggested are middle-of-the road. While Obama shares some of the traditional liberal concerns on the environment and on foreign intervention, there isn't much in his background to suggest a deep concern with civil liberties (outside of the civil rights context). The name that is making the rounds right now is that Janet Napolitano has the inside edge to be AG. Whether she gets it or not, the fact of the matter is that she is about as middle of the road as you can get. So the mere mention of her name is not the type of thing that would bring hope to liberals and fear to conservatives.

In saying this, I don't mean to imply that Obama's election isn't going to make a difference. It will. But people who have an expectation that there is going to be a massive overhaul of Bush administration criminal policies have vain hopes, in my opinion. You will see some substantial changes in some areas but mostly it will be tinkering around the edges.

Posted by: Daniel | Nov 5, 2008 1:45:34 PM

You are dreaming if you think an Obama administration is going to show any loosening on 2A issues. He made the right post Heller sounds but that's all it was.

Posted by: Soronel Haetir | Nov 5, 2008 2:01:57 PM

The long national nightmare of the Bush administration is over.

But I don't think for one second Obama is going to advocate more protections for criminal defendants. Nobody likes criminal defendants, and once they're convicted, they (typically) don't get to vote, so they're not even a viable constituency. Nobody but a few lawyers, criminal defendants, and their families, really gives a crap. That's why we have felon disfranchisement - so they don't get to vote against "tough(er) on crime" legislation. Penalties will always increase because crime will never cease to exist, and increased penalties is the only remedy people understand, or at least see as rational.

But I don't see Obama turning the DOJ into a political arm of the democratic party like Bush did re the GOP. Surely that's a good start.

Posted by: BruceM | Nov 5, 2008 2:13:33 PM

I should also point out, and I bet S.Cotus will agree with me, that it's great that we finally have someone with a Bar Card in the White House. I don't see how anyone can be the head of the federal government who hasn't gone to law school, let alone be qualified to appoint judges and set the direction of the DOJ on legal matters. While I believe only lawyers should be able to vote for judges in those states where they're elected (and they should not be), I have no doubt that only a lawyer is qualified to be President. Elitist? Snob? Sure, whatever. The law is too complicated for most lawyers to understand - how can a lay person with no legal training or background possibly be President, the chief law enforcement offical of the executive branch (executive = executes the law)? It doesn't have to be a lawyer from an Ivy League law school. Just someone with a law degree is all I ask, whether I agree with them or not.

Posted by: BruceM | Nov 5, 2008 2:23:49 PM

While I honestly don't beleive it will happen, wouldn't it be great if Obama supported an expansive view of constitutional rights? Not just the ones that are consistent with his own ideological leanings, but all of them? It would be a refreshing breath of intellectual honesty... (Read: expansive view of the 2nd amendment in ADDITION to the amendments dems typically care about)

Posted by: Monty | Nov 5, 2008 4:12:19 PM

Bruce:

Look at the statements he has made on criminal justice reform at his website. He is on the record as opposing mandatory minimums for a broad variety of crimes, for eliminating the crack/powder sentencing difference, for improving the nuts and bolts issues involving guilt (id reform, taping confessions, etc), and he supports drug courts. Most importantly, those below the level of cabinet level appointees are likely to be very progressive. And then there are federal judges.

While you are likely to see stronger child predator legislation (following his comments following Kennedy).

Posted by: karl | Nov 5, 2008 4:20:38 PM

karl I hope you're right, I hope he does take some initiative with these unpopular issues - he certainly has the mandate and political capital to do so. But he may prefer to spend it on healthcare reform, among other things that don't "cater to criminals" and make him "soft on crime."

Posted by: BruceM | Nov 5, 2008 6:50:05 PM

Bruce:

I've discussed the President-elect's criminal justice policy proposal's over at my blog at some length. (capitaldefenseweekly.com). BHO's position aren't that radical, but then again I practice in a fairly blue state.

Two address just two points of your concerned, I'm not sure how much outrage you'll see on legislation aimed at getting the right guy and not just some guy. To be blunt, I hate the taped confession requirements where I practice because it has taken away some great arguments one can make to a jury, but for ensuring the jury convicts the right guy and not merely the guy sitting at the defense table, the reform is welcomed.

Technical corrections to the sentencing rules, again something most people won't care too much about. As long as we aren't talking about releasing violent felons and predators I think the public will appreciate the idea saving them money that can go back in to their pocket.

Posted by: karl | Nov 5, 2008 7:33:32 PM

Well, I do think that downstream people may be more "progressive" than Obama, progressive is a term with many different meanings. I actually think Obama is going to run an administration that was a lot like Bill Clinton's. What I would call Democratic centrist or traditional liberal. This may involving some things that progressive like, it will mostly amount to undoing some of the worst things Bush did. I don't think he's going to push hard to advance a left-wing agenda. Now, some in Congress will test him on that and it will be curious to see what his reaction is going to be. I would hardly call "id reform" a progressive issue. Going back towards the center where we were ten years ago may qualify as an improvement, but it's hardly progressive.

Posted by: Daniel | Nov 5, 2008 7:41:50 PM

I think that this is good news for medical marijuana, and that the disqualification from student aid based upon drug crimes may also go (probably with wider exceptions to the general rule).

Posted by: ohwilleke | Nov 5, 2008 9:55:39 PM

BruceM wrote: "Penalties will always increase because crime will never cease to exist..."

I assume you're speaking realistically rather than pragmatically. Because as for the latter, it could certainly happen, in a meaningful (not utopian) sense. But, realistically, I agree. As long as the U.S. is an international empire/domestic 3rd world nation, crime will never cease here. But that's only because of a choice of priorities among the ruling class: empire before citizens. And, of course, Obama has chosen empire, as he must to lead the ruling class.

Posted by: DK | Nov 6, 2008 12:09:48 AM

DK: yes, speaking realistically, not saying that's the way it should be. But as long as there is crime, people will be made to be scared of crime, and those in power will seek to capitalize on it. The quickest, easiest proposal is that sentences clearly are not long enough (because people are still breaking the law) so let's make them longer to be tough on crime. And when those sentence increases cease to end crime, there will be more sentence increases come the next election cycle. Everyone wants to be "tougher on crime" than his/her opponent, so we get longer sentences, mandatory minimums, etc. And guess what? Crime doesn't end. Crime levels do drop, but that has more to do with legalized abortion (see donohue-levitt study) than making a 2nd degree felony a 1st degree felony.

karl: when criminal justice issues are framed right, most people will agree that they don't want to send the wrong (i.e. an innocent) guy to prison. Most people. Some, especially in the victim's rights groups, don't give a shit and just want someone to be locked up so the victim/victim's family can have their illusory "closure." This is particularly true when a child is the victim. But the problem is the vast majority of people assume that the right person is always convicted (in fact, they assume the right person was charged, the trial is a mere formality). People don't like to hear "whining" about erroneous convictions, which means perpetual appeals, and denial of "closure" for the stupid ass victims (yes, I am anti-victim and if I'm ever the victim of a serious crime, my opinion should be wholly and completely disregarded with respect to sentencing/punishment issues). As such, why should any politician even bother to address the type of reform about which you speak? There are more important things, like studying the mating habits of sperm whales.

Posted by: brucem | Nov 6, 2008 12:24:49 AM

Bruce, It is really nice to be talked about. And yes, I agree with you. The fact that we have a person (yet alone THREE if you count the first lady and the VP) that are lawyers will make a difference and it will be good for the country.

Posted by: S.cotus | Nov 6, 2008 10:08:55 AM

I have never seen a district judge fear backlash from the Justice Department.

Talk is Napolitano for AG and she was VERY law and order as US Atty and AG in AZ. Very supportive of the Death Penalty, even personally arguing Ring at the Supreme Court.

I expect you will see more weight given to the US Atty’s recommendation as to the Death Penalty Protocol and the COPs program will be back. But overall I do not see mandatory minimums going away or a decrease in prosecution of Child Porn and gun cases.

Posted by: lawdevil | Nov 6, 2008 10:59:01 AM

Parties may have changes, but people haven't. People still rejected gay marriage and in California, even rejected allowing drug offenders to go to rehab rather than prison. The electorate hasn't changed on criminal issues.

Posted by: JT | Nov 6, 2008 11:54:38 AM

S.cotus: You and I have been bashed here over our "bar card elitism" so I figured I'd save you the time of a full response (as I did on antoher post last week if you recall). We don't agree on everything, but there are a few minority positions on which you and I both strongly agree.

lawdevil: you need to do some research on downward departures pre-Booker and the form District Judges had to fill out and submit to the DOJ every time they did a downward departure, and you'll quickly realize your previous statement about lack of district judge fear of DOJ backlash is verifiably incorrect. You may not have "seen" a District Judge shaking in his/her boots, if for no other reason than the bench obscures their boots, but I assure you, it happens. Hell, there was talk of IMPEACHING judges who granted downward departures (in unpopular cases). Tom Delay lead that charge, if I recall correctly. Now you hear about "Booker Fixes" to cover the same acts of justice tempered with leniency, as if Booker "broke" something. Judges are being threatened to have their sentencing discretion taken away (again) if they keep giving sentences below what the DOJ (via the AUSA prosecuting the case) demands.

Posted by: BruceM | Nov 6, 2008 5:15:12 PM

"I should also point out, and I bet S.Cotus will agree with me, that it's great that we finally have someone with a Bar Card in the White House. I don't see how anyone can be the head of the federal government who hasn't gone to law school, let alone be qualified to appoint judges and set the direction of the DOJ on legal matters. While I believe only lawyers should be able to vote for judges in those states where they're elected (and they should not be), I have no doubt that only a lawyer is qualified to be President. Elitist? Snob? Sure, whatever. The law is too complicated for most lawyers to understand - how can a lay person with no legal training or background possibly be President, the chief law enforcement offical of the executive branch (executive = executes the law)? It doesn't have to be a lawyer from an Ivy League law school. Just someone with a law degree is all I ask, whether I agree with them or not."

I made a similar argument in class yesterday regarding Sarah Palin’s “qualification” to be president should McCain have been elected and passed away in office, versus Obama’s qualification and judgment, when a student made the statement that it would be “elitist” to set up educational qualifications to be president of the United States of America.

My argument was not based on having a J.D. per say, but on how those who have gone through rigorous training and learned to think critically are better prepared to be Chief Executive. However, what is truly important is that we have the guidance of someone who has good critical thinking skills as to execute good judgment, and not be afraid of surrounding him/herself with those who have more domain knowledge in a variety of areas in order to be well informed. It also helps to have those with whom one would be more inclined to go against challenge our ideas.

However, the truth of the matter is that I have come across several attorneys that would make anyone think twice before commissioning them. Often these attorneys see things through partisan perspectives and dare not challenge what they have learned or have “known” to be true-but not tested, for so many years.

And yes, your argument IS elitist, but WTF wants a idiot in the White House just because she has a nice derrière and nothing in the area of intelligence?

Posted by: | Nov 6, 2008 8:17:38 PM

"I should also point out, and I bet S.Cotus will agree with me, that it's great that we finally have someone with a Bar Card in the White House. I don't see how anyone can be the head of the federal government who hasn't gone to law school, let alone be qualified to appoint judges and set the direction of the DOJ on legal matters. While I believe only lawyers should be able to vote for judges in those states where they're elected (and they should not be), I have no doubt that only a lawyer is qualified to be President. Elitist? Snob? Sure, whatever. The law is too complicated for most lawyers to understand - how can a lay person with no legal training or background possibly be President, the chief law enforcement offical of the executive branch (executive = executes the law)? It doesn't have to be a lawyer from an Ivy League law school. Just someone with a law degree is all I ask, whether I agree with them or not."

I made a similar argument in class yesterday regarding Sarah Palin’s “qualification” to be president should McCain have been elected and passed away in office, versus Obama’s qualification and judgment, when a student made the statement that it would be “elitist” to set up educational qualifications to be president of the United States of America.

My argument was not based on having a J.D. per say, but on how those who have gone through rigorous training and learned to think critically are better prepared to be Chief Executive. However, what is truly important is that we have the guidance of someone who has good critical thinking skills as to execute good judgment, and not be afraid of surrounding him/herself with those who have more domain knowledge in a variety of areas in order to be well informed. It also helps to have those with whom one would be more inclined to go against challenge our ideas.

However, the truth of the matter is that I have come across several attorneys that would make anyone think twice before commissioning them. Often these attorneys see things through partisan perspectives and dare not challenge what they have learned or have “known” to be true-but not tested, for so many years.

And yes, your argument IS elitist, but WTF wants a idiot in the White House just because she has a nice derrière and nothing in the area of intelligence?

Posted by: | Nov 6, 2008 8:18:09 PM

Well surely there are plenty of stupid lawyers who are not qualified to be president, no doubt about that. I'm saying a JD is a necessary but not sufficient precondition of being a viable Chief Executive of America's federal government.

To answer your question, lots of people want an idiot in the white house - it's how we ended up with Bush. He was not smart, but people could see themselves "having a beer with him" and that's what matters most in America. Smart people are "elites" (literally and perjoratively) and since the average american is an ignorant religious moron, they want a leader with whom they can relate. So, WTF wants an idiot in the white house? Ask anyone who voted for Bush's second term (by then there was no doubt he was an incompetent idiot). And it's the same reason why Sarah Palin, who thought Africa was a country (not a continent), is seen as the future of the GOP. Dumbass christian assfucks who value stupidity and fear those smarter than themselves find they can relate to her. "She has lots of children" is seen as the most positive characteristic about her. What the fuck? How is getting knocked up and hatching five kids even remotely related to one's ability to do anything but have a working reproductive system? Nobody even claims she's a good parent (her daughter got knocked up out of wedlock, so by the Christian Conservative's own standards, she's a shitty parent with a slutty daughter).

Posted by: BruceM | Nov 6, 2008 8:29:35 PM

I must admit that I always took these bar card comments tongue in cheek but now I wonder if you guys aren't serious. If so, I think you are crazy.

"And yes, your argument IS elitist, but WTF wants a idiot in the White House just because she has a nice derrière and nothing in the area of intelligence?"

Because there are more important things in life than either intelligence or the ability to think critically, as anyone who is intelligent and can think critically should know.

Posted by: Daniel | Nov 6, 2008 10:01:47 PM

Like I said before, intelligence and the ability to think critically (and have an understanding of law) are a NECESSARY, but not SUFFICIENT condition of being President.

Do you understand the difference between necessary and sufficient? It's a requirement, but not the sole requirement.

And yes i'm totally serious re: bar card.

Posted by: BruceM | Nov 6, 2008 10:38:35 PM

"Because there are more important things in life than either intelligence or the ability to think critically, as anyone who is intelligent and can think critically should know."

That may be true, Daniel, but it's not he bottom of the barrel quality of a person that will allow him to lead a nation successfully not only now, but leave a lasting positive effect for years to come. Having said that, I don't know...I prefer having an elitist run the nation than the Dumb (Bush), Dumber (McCain), and Super Dumb (Palin).

Bruce, settle down. You said, "I have no doubt that only a lawyer is qualified to be President." I disagree with the absolute. The necessary and all that other jazz just showed up this last time. But we're with you.

Posted by: | Nov 6, 2008 11:16:44 PM

Daniel, I am serious.

Now, it is true that there might be some non-intelligent lawyers out there. But, I simply don’t have the time to check to see if every non-lawyer that I come into contact with can think critically about an issue. The “bar card” is a nice way of saving time.

And, like the above posters it isn’t a sufficient condition. It is a good screening device.

By the way, I think that McCain can think critically. However, it took him years to demonstrate that. Most people I meet don’t have time to develop the track record that McCain did. Palin can’t. Palin was nominated because she looked nice. So, even though I might disagree with McCain, he is definitely intelligent, hard-working, and honorable.

Posted by: S.cotus | Nov 7, 2008 9:49:56 AM

You are right about McCain and his ability to think critically. Where McCain's critical thinking skills can take him to see 2 miles away, others with sharper critical thinking skills can see 2 decades away. ;p

Posted by: Ange | Nov 7, 2008 7:30:57 PM

Only a lawyer is qualified to be president. But that doesn't mean ANY lawyer is qualified to be president. Hell, I'm a lawyer and I don't think I'm qualified to be president (and I'm too young, per the Constitution).

The president is the chief law enforcement official of the country - that's what the executive branch does, it enforces the law. Law school should be a minimum qualification for such a responsibility. It is, in my opinion. Can nonlawyers think critically? of course. That's beside the point. The bar card is de facto evidence that an individual can think critically, has a basic understanding of the law, and has at least some degree of above-average intelligence.

There's no way Sarah Palin could pass the bar exam, let alone 3 years of law school. No way. She was a journalism major and she doesn't even understand how journalism works, per her rant earlier today.

Bar card is necessary, but not sufficient condition. We should be electing our president out of a pool of smart, qualified, competent lawyers. But they should all be lawyers.

Would you want a nonlawyer representing you in a murder trial (even if he/she were very intelligent)? Of course not. So why the hell would you want a nonlawyer to be the chief law enforcement official of America? Where is the disconnect here?

Posted by: BruceM | Nov 7, 2008 11:00:46 PM

This is just stupid. Seriously, only 40% of American presidents have been lawyers. Lincoln was a lawyer, Washington was not. There have been many good presidents who were lawyers and some that were not. I think being a lawyer has zero to do with being a good president, just like it has zero to do with being a good person. The idea that the only role of President is to uphold the law is silly. Indeed, many people would make the case the his duties of being Commander-in-Chief is far more important to the health and safety of the country. By the logic you use, not only must the president be a lawyer, he must be a military lawyer! And yet, we never have had a military lawyer as president.

The whole argument about bar cards doesn't even bear cursory examination. It's a saw fit only for wooden heads.

Posted by: Daniel | Nov 7, 2008 11:52:50 PM

Things are different now than in the time of Washington, when there were only 3 federal crimes. The US Code and federal regulations are so massive it's unreal. Law was not as central to life (especially federal law) then as it is today.

The duty of the president is to enforce the law. To "execute" the law (executive branch).

Posted by: BruceM | Nov 8, 2008 1:04:00 AM

Let's look at the recent record.

Bush II - nonlawyer was pretty much a disaster

Clinton - lawyer - he overall was a good president so he is in the successful category.

Bush I - non-lawyer - he was throughly mediocre in almost every respect

Reagan - non-lawyer - he definitely had some issues regarding the rule of law and constitution - big foreign policy success due to timing as much of anything - domestically, his talk did not match reality, which probably actually worked out to the benefit of the country. Odd that most of his biggest successes (such as the Soviets falling for the Star Wars bluff, although Reagan may not have realized it was a bluff). An accidential success.

Carter - nonlawyer (was an engineer). For some reason, while smart, engineers generally are not too successful presidents (see also Hoover). Still, was as much a victim of circumstances as anything - I'd put him in the same category as Bush I - mediocre

Ford - think he was a lawyer, but not sure. Just a caretaker - mediocre

Nixon - lawyer - created the worst Constitutional crisis in history - prior to that, had quite a bit of success internationally and domestic. That whole Watergate thing puts him in the bad/disaster category. Probably the biggest argument against Bruce and S COTUS's position.

Johnson - he was a teacher, don't think he was a lawyer. Great success domestically, foreign policy was a disaster which undermined his presidency. Mixed record. Without Vietnam, would have been one of the greats.

Kennedy - was he a lawyer? I know his brothers were, but honestly I'm not sure. Pure style over substance. Honestly, LBJ was way more effectively, so its entirely arguably that Kennedy's biggest success was being shot.

Eisenhower - non-lawyer, General. In my opinion, the most underrated President of the 20th Century - just misses being a great due to not keeping a close reign on the Dulles brother and the CIA which led to some embarassing foreign policy fiascos, such as the U2 incident. The interstate highway system is one of the greatest achievements of American history. Contrary to Barry Goldwater's suggestion, Eisenhower (like Clinton) proves that moderation in the White House can be an extremely good thing. Eisenhower's moderate liberal policies were exactly what the country needed in the 1950s. And we should all heed his warning regarding the military industrial complex. In my opinion, the best Republican president of the 20th Century, I'd rank him 3d overall behind only FDR and Truman (yes, I would rank Eisenhower over Teddy Roosevelt - Roosevelt like Kennedy was more a matter of style over substance - Taft actually did more to advance Roosevelt's Progressive agenda in many respects).

Truman - non-lawyer. I've already said it, Truman is in the great/near great category along with FDR and Eisenhower.

FDR - lawyer (but not a law school graduate since he was able to pass the bar after only one year at Columbia) - simply the best President of the 20th Century and anyone who says otherwise is a right wing Republican stooge. His New Deal saved Capitalism from itself and he set up the defeat of fascism during World War II.

So going back 75 years since FDR took office, I do not think that you can conclude that having a law degree is necessary to be a good president or a decent predicter of success. I think that the two Bushes have soured people on the idea of a non-lawyer President since in the past 20 years Clinton was the only successful President we had and he was a lawyer). One wonders if Nixon soured people on the idea of having a lawyer as president just as Bush soured people on the idea of having a non-lawyer as president.

I would note that the successful non-lawyer Presidents in the past 75 years (I'd list Eisenhower, Reagan, and Johnson in that category) all of whom had substantial leadership experience (Eisenhower as a General, Reagan as President of the Screen Actor's Guild and Governor of California, LBJ as Senate Majority Leader during the 1950s). Eisenhower and Reagan were also more hands off type Presidents. LBJ is, of course, only a qualified success due to Vietnam.

Posted by: Zack | Nov 10, 2008 11:24:21 AM

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