February 6, 2009
Am I crazy to dream about a "Liberty Recovery Advisory Board"?
As detailed in this Politico entry, today President Obama signed an executive order creating a new Economic Recovery Advisory Board. This press release and this official blog entry at the White House website provides more background, as well as the text of the President's remarks at the signing. This news and event got me to thinking about what might happen if Americans were as concerned about the sorry state of liberty in the United States as they are about the sorry state of the economy.
With these crazy ideas in mind — namely the idea that Americans and its political leaders might be just as concerned about human liberty as they are about economic prosperity — I have imagined a different version of some of the President's remarks today:
I have just had the opportunity to welcome the members of my Liberty Recovery Advisory Board. And I'm grateful that I will have the counsel of these extraordinarily talented and experienced men and women in the challenging months to come.
If there's anyone, anywhere, who doubts the need for wise counsel and bold and immediate action, consider the very troubling news we just received. The Department of Justice just adjusted their imprisonment numbers for 2008, and now report that we've got nearly 2.5 million individuals lock up in prison or jail in this county.
That's 2.5 million individuals who wake up every day without the liberty to decide what to do that day and unable to be with family or friends who might need them. That's 2.5 million individuals who cost hard-working taxpayers trillions of dollars through the costs of housing and feeding people who may be able to get off the government dole and lead more productive lives.
Now is the time for Congress to act. It's time to pass an Liberty Recovery and Reinvestment Plan to restore our commitment to human liberty. This is not some abstract debate. It is an urgent and growing crisis that can only be fully understood through the unseen stories that lie underneath each and every one of those 2.5 million individuals now confined to cages.
It's very important to understand that, although we hit record incarceration rates every year, the problem is accelerating, not decelerating. It's getting worse, not getting better. These aren't my assessments -- these are the assessments of independent criminologists. If we don't do anything, millions more will lose their liberty.
Americans did not choose more of the same in November. They did not send us to Washington to get stuck in partisan posturing, to try to score political points. They did not send us here to turn back to the same tried and failed approaches that were rejected, because we saw the results. They sent us here to make change, with the expectation that we would act.
Now, I have repeatedly acknowledged that, given the magnitude and the difficulties of the problem we're facing, there are no silver bullets and there are no easy answers. Public safety may require denying liberty to some number of hardened criminals. But many Western nations have incarceration rates only 1/5 or even 1/10 of ours without sacrificing public safety concerns. That is what America needs. It will take months, even years, to renew our liberty, but every day that Washington fails to act, a nation that President Lincoln noted was "conceived in liberty" fails to live up to its founding principles.
Now, we also know that no single act can meet the challenges of this moment. This process is just the beginning of a long journey back to being the free society we like to think it is. Given the scope of this crisis, we'll need all hands on deck to figure out how we are going to move forward. And that's why we took the unique step of creating the new institution whose members have gathered here today. Put simply, I created this liberty recovery board to enlist voices to come from beyond the Washington echo chamber, to ensure that no stone is unturned as we work to get able-bodied people out of cages, in order to these put people back to work and help get our economy moving.
I'm not interested in groupthink, which is why the board reflects a broad cross-section of experience and expertise and ideology. We've recruited Republicans and Democrats, people who come out of prison as well as those who have put people in prison. Not everyone is going to agree with each other, and not all of them are going to agree with me -- and that's precisely the point, because we want to ensure that our policies have the benefit of independent thought and vigorous debate.
And we're also going to count on these men and women to serve as additional eyes and ears for me as we work to reverse modern mass incarceration. Many of them have ground-level views of the changes that are taking place, as they work across different sectors of the criminal justice system and different regions of the country, and they can help us see the trends that are not fully formed, the trouble that may be on the horizon, and the opportunities that have yet to be seized. I look forward to relying on their input and recommendations on specific questions as we jumpstart liberty recovery and pursue strong and stable communities.
Sadly, I know that, despite all the talk of hope and change, we should not expect to hear a speech like from any national political leader anytime soon (save perhaps Senator Jim Webb). But I really do believe the founders of this country would have hoped and expected that modern Americans and its leaders would remain just as committed to liberty as they are to the pursuit of happiness. Sadly, as the US prison population continues to grow as we continue to be world's modern leader in locking people in cages, I fear we have not lived up to the Framers hopes and expectations.
Some recent related posts:
- Inaugural rhetoric about freedom and liberty in prison nation
- My latest (academic?) musings about progressive punishment perspectives
- The state of cost problems in the states of prison nation
- When will President Obama start acting like President Lincoln when it comes to the clemency power?
- Historical evidence that it is NOT too early to start demanding clemencies from President Obama
- What do "our ideals" say about mass incarceration or LWOP for juves or acquitted conduct or the death penalty or GPS tracking or....
February 6, 2009 at 05:39 PM | Permalink
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I think you're kidding yourself. The only reason the Founders would have for horrow is that we waste the capital putting people in cages rather than dispose of them permanently.
As for liberty more generally, I am not at all certain that raw incarceration numbers really provide a useful measure of freedom. Europe may lock up fewer people for fewer years, but the societies are also more constrained in the behavior they will tolerate to begin with. I am referring to things like Germany's criminalization of Holocaust denial and the growing movement towards religious protectionism. I am also referring to economic liberties such as the French labor system which makes it extremely difficult for businesses to lay off workers, thus making it harder to take advantage of temporary opportunities.
Am I saying that these things are entirely incompatible? No. But the freedom to succeed isn't going to get many takers when the freedom to fail is removed.
I do not think how society chooses to punish people is a good measure of liberty, instead prefering how much latitude there is in what is tolerated to begin with. In this regard I honestly don't know how different the US is on basic crime issues.
Posted by: Soronel Haetir | Feb 6, 2009 6:35:09 PM
Well said, Soronel.
Posted by: Kent Scheidegger | Feb 6, 2009 6:58:37 PM
Wonderful post, Doug.
Posted by: DK | Feb 6, 2009 8:14:35 PM
Soronel Haetir wrote: "As for liberty more generally, I am not at all certain that raw incarceration numbers really provide a useful measure of freedom."
This is absurd on its face. It's like saying meters are not a useful measure of distance.
Soronel Haetir wrote: "Europe may lock up fewer people for fewer years, but the societies are also more constrained in the behavior they will tolerate to begin with. I am referring to things like Germany's criminalization of Holocaust denial ..."
Really? Because I'm pretty sure they tolerate drug use a lot better than the U.S. But what's tolerating the behavior of millions compared with tolerating a few people's denial of the holocaust? I don't think you're going to gain any ground by citing obscure European criminal laws that affect handfuls of people.
Soronel Haetir wrote: "I am also referring to economic liberties such as the French labor system which makes it extremely difficult for businesses to lay off workers, thus making it harder to take advantage of temporary opportunities."
Seriously, you think a government's disproportionately locking black men in cages (America) advances the cause of liberty more than a government's protecting workers' jobs (France)? I'm sorry, but this is way beyond the pale.
Soronel Haetir wrote: "I do not think how society chooses to punish people is a good measure of liberty, instead prefering how much latitude there is in what is tolerated to begin with."
Like tolerating the right of the people to work and not be fired arbitrarily or without cause? If I'm an employee (which most of us are), a government's extension of protections to us vis-a-vis our more powerful employers enhances liberty.
Your comment was a sorry attempt to rationalize America's betrayal of liberty as a value.
Posted by: DK | Feb 6, 2009 8:40:24 PM
Wow. I am going to agree with both Kent and Soronel.
"Stone walls do not a prison make" said the great poet and I agree. I think it's rather bizarre to claim that people in prison have lost their liberty. They have a lost a certain amount of physical freedom, that is true. And, in doing so, their field of experience has undoubtedly been limited. But it seems to me that equating liberty with physical freedom of movement is rather narrow minded. And narrow mindedness itself is a type of prison.
As for the Founders, let's be honest. They were, like people today, a rather diverse bunch. There were Founders that would have agreed with you Doug, but I don't think they were in the majority.
Posted by: Daniel | Feb 6, 2009 8:43:39 PM
Oh, and by the way, in case you have forgotten other posts. I agree with you Doug that we lock up too many people in this country and that it harms us. I just don't think "liberty" as a value has much to do with the question one way or the other.
Posted by: Daniel | Feb 6, 2009 8:47:04 PM
DK. I missed your post while typing mine.
"Soronel Haetir wrote: "As for liberty more generally, I am not at all certain that raw incarceration numbers really provide a useful measure of freedom."
This is absurd on its face. It's like saying meters are not a useful measure of distance."
No, that's not right. The problem with your analogy is that meters is not the only may to measure distance. There is no consistent way in which people measure liberty. For some people it's physical freedom, for other's it's freedom of conscious, for others it freedom of speech, and so on. Physical freedom is one way to measure freedom but it is not the only way or, in the minds of many, the most important way. It's not even a foundational way.
I wonder what this man would say to your definition of freedom DK. He thought he was free.
Posted by: Daniel | Feb 6, 2009 8:54:16 PM
What of the economic freedom of the business owner? I own a small retail shop, employeeing three people outside my family. If I had to put up with people unwilling to do the simple tasks I require to a competent level I would almost certainly hire fewer people to perform that labor and do more of it myself. This would both reduce my personal liberty and remove employment opportunities from the community.
I think you would be amazed at how difficult it is to find people who can handle such jobs even at $18/hour. I have little symphathy for people who feel that they have a right to any particular job.
I also agree with Daniel in saying that non-confinement is a very poor measure of liberty. I am blind and live 6 miles outside a town of three thousand people. I do not leave my house without assistance. By your measure I have no liberty.
Posted by: Soronel Haetir | Feb 6, 2009 9:18:03 PM
Maybe you didn't fully understand Soronel Haetir's assertion: "I am not at all certain that raw incarceration numbers really provide a useful measure of freedom." Are you seriously agreeing with Soronel that the rate at which a government locks people in cages is not useful for measuring liberty?
Daniel wrote: "There is no consistent way in which people measure liberty. For some people it's physical freedom, for other's it's freedom of conscious, for others it freedom of speech, and so on."
These are all the same thing, not measures of anything. One measures how much freedom of speech is deprived by counting the number of people the government has locked up for speaking. One measures how much freedom of conscious is deprived by counting the number of people the government has locked up for exercising it. It is fundamentally indisputable that imprisoning people is the severest deprivation of liberty that a government can inflict. This is a core premise of the Bill of Rights; shrugging off imprisonment as irrelevant to liberty is offensive.
And I don't understand the relevance of Simeon Stylites. Are you trying to argue that incarceration rates are not useful measures of liberty because the prisoners may be voluntarily choosing to lock themselves in cages? Or otherwise prefer it to being in what they refer to as "the free world"?
Posted by: DK | Feb 6, 2009 9:44:19 PM
Speaking of the Germans, Nietzsche once said, "Beware of those in whom the will to punish is strong."
Is it a warning the Germans once ignored but no longer ignore.
Posted by: George | Feb 6, 2009 9:44:39 PM
I think what Mr. Haetir was suggesting is that, in and of themselves, incarceration numbers can be misleading in assessing the freedom available in a society. Were this not the case, the most free society would be one which imprisons nobody at all. Since none of us (presumably) would be willing to make this assertion, and as none of us view Somalia (perhaps) as a bastion of freedom, a low or high rate of incarceration doesn't itself indicate whether a society is free or closed.
A far more telling statistic is what people are being imprisoned *for*. Of course, there, we immediately run into problems, because we each believe that no one should be incarcerated for the set of behaviors that we consider legitimate exercises of liberty - and of course, those sets have significant discrepancies. Further, we each believe that people should be incarcerated for sufficiently serious criminal behavior, but good luck getting us to agree on what this would mean.
As for Prof. Berman's suggestion of a "Liberty Recovery Advisory Board", it's a nice thought, but wouldn't it be unmanageably political? Just witness the debate on this thread already as to whether Liberty Recovery involves reducing regulatory burdens on entrepreneurs or increasing them in the name of protecting labor.
Posted by: Leon Sinoff | Feb 6, 2009 11:09:31 PM
Not a chance. See this story about Councilman killing: Mistaken ID, deal gone bad, over fifty bucks. You'd think it was righteous outrage over a terrible crime, but read the sadistic comments over the Department of Motor Vehicles being closed.
Maybe the politicians are secretly conducting some Milgram experiment. Or maybe the news media is nothing but a troll. Whatever is it, The People wallow in their indignation and ever seek more justification for it. Even TalkLeft did a lot of wallowing over the Phelps affair.
Posted by: George | Feb 6, 2009 11:24:59 PM
Another example is the prison crisis in California. Check the comments. Though a lot of the comments are probably from CCPOA members and freepers, the mood is there. Not much chance for change when that seems to be the majority opinion, if it is (could be organized opinion).
Posted by: George | Feb 6, 2009 11:59:22 PM
Leon, you make some thoughtful points, but it remains wrong to assert that "incarceration numbers can be misleading in assessing the freedom available in a society." Incarceration numbers are never misleading. They tell you exactly how many people are in cages, deprived of liberty.
Now, you are right that one can go further and ask why these persons have been put in cages. But let's assume for the sake of argument that every incarcerated person in America is imprisoned for murder. This would not change anything. This America would still fail a liberty test for being so dysfunctional that, just to keep some of its members safe from physical harm, it has to lock up a significant portion of other members.
To get this, it may be necessary to understand that crime is a largely preventable phenomenon. There are policies that governments can enact--policies that do not involve deprivations of liberty--that would significantly reduce murders and thus significantly reduce the number of people the government is required to stow in cages. The government that enacts these policies gets high marks for liberty. The government that refuses to enact these policies and instead opts to put people in cages (not to mention watch its citizens die) is a government gets low liberty marks.
Posted by: DK | Feb 7, 2009 12:18:51 AM
DK. You and I are simply not going to agree as a matter of perception.
"They tell you exactly how many people are in cages, deprived of liberty."
Being locked in a cage is not a deprivation of liberty. It is a deprivation of one particular mode of liberty, that is all.
"Are you seriously agreeing with Soronel that the rate at which a government locks people in cages is not useful for measuring liberty?"
"It is fundamentally indisputable that imprisoning people is the severest deprivation of liberty that a government can inflict."
I dispute it. With all my heart and soul.
Posted by: Daniel | Feb 7, 2009 2:45:29 PM
Just listening to David Hackett talking about his book, CHAMPLAIN'S DREAM. He's discussing freedom, fairness and liberty. He believes that liberty is freedom from outside coercion.
Helveretius (1715 - 1771) said "A free min is the man who is not in irons, nor terrorized like a slave by fear of punishment".
Now the question is what is the States role in liberty? Individualists believe that the State's role is to protect the individuals liberty by making sure they have the maximum freedom to move, act, and think as they please.
Others believe that individuals have freedom to act only after government defines the parameters in a way that those who govern decide what is best for everyone. This is a delicate balance.
The Constitution talks about LIFE LIBERTY AND PROPERTY. The role of government in protecting liberty (freedom) is not the same as the government keeping us safe. The government keeping us safe is detrimental to freedom, especially when we are being protected from ourselves. and our own decisions.
I fear there is a tipping point where the contract between the State and the governed may be fatally breached.
I lead a very satisfying and happy life in spite of my government, not because of it. My tipping point is almost here.
1 I have an apparent problem with the EPA about an accidental fire on property I own.
2 I have an adult child whose business owes penalties and interest on back taxes. His
property and accounts were levied the same week we learned that government officials paid
taxes on their time table and penalties were not expected to be paid.
2 I have a loved one in prison (and yes, he is a non-violent first offender).
Doug - thanks for the posts from the Constitution Project, "Over Criminalization OF Conduct, Over Federalizatin of Criminal Law and the Exercise of Enforcement Discretion".
Also Rachel Barkow's "Administrative State and the Demise of Mercy".
To answer the question: I'd love to see a "liberty Recovery Advisory Board".
Posted by: beth | Feb 7, 2009 7:28:56 PM
The Declaration of Independence brings up life, liberty and the pursuit of happiness. The Constitution's only reference to liberty is in the preamble,, and property comes up only in the context of what is actually controlled by the Federal government.
Life, liberty and propety is linked much more in my mind with libertarians such as Lysander Spooner.
As for the tax bit, Dasshle is not yet out of the woods with regard to penalties. Geithner was beyond the reach of penalties due to the statute of limitations, he could have happily not paid the shortfall at all, though the Senate would have likely rejected him in that case.
Posted by: Soronel Haetir | Feb 7, 2009 9:40:36 PM
Well Soronel of course you are correct. The property issue was a strange twist of the mind on my part. I do have some fears of searches and seizures that may inspire mental lapses.
I really am not in a contest. I know that justice is complicated and has many connotation. It inspires a broad range of thought and emotions - I just think it can be discussed
Posted by: beth | Feb 7, 2009 10:25:35 PM
Soronel Haetir wrote: "The Constitution's only reference to liberty is in the preamble,, and property comes up only in the context of what is actually controlled by the Federal government."
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Incidentally, all the criminal trial rights in the bill of rights are reflective of the Founder's beliefs that imprisonment was the severest restriction on a citizen's liberty a government could impose.
Daniel wrote: "Being locked in a cage is not a deprivation of liberty."
I think you have made thoughtful contributions to Doug's blog, but this lacks all reason and is wildly inconsistent with core American ideals. And, because I do not think you are stupid, I think you are well aware of this and won't even attempt to defend it.
Posted by: DK | Feb 8, 2009 4:01:01 AM
I propose putting Daniel's poetic stone walls/iron bars notion of liberty to the test. Lock him up for a year (or a day or a week or a month, for that matter) then revisit the question.
Beyond that, America takes a backseat to no country in its zeal for criminalizing benign conduct. For every Holocaust-denial statute that might exists elsewhere, I'll bet America could easily trump it with a dozen or more overreaching laws of its own.
Currently I'm fascinated by the notion of locking up and stigmatizing as "child pornographers" teen-agers who send racy pictures of themselves to their sweethearts; imagine trials in which the victim and perp is the same person. Top that, Europe!
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