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September 12, 2011

Will tonight's Tea Party GOP Debate discuss costly government programs like the drug war and mass incarceration?

Teapartydebatebanner I am genuinely excited and intrigued that tonight's scheduled GOP debate in Florida is co-sponsored by the Tea Party Express.  (It is also co-sponsored by CNN, which has me decidedly less excited and intrigued.)  Though Social Security and health care and the economy are sure to be the main topics for discussion, I am (naively?) hopeful that the tea party involvement might prompt at least a little bit of criminal justice discussion.

This debate page on the Tea Party Express website provides notable context for its sponsorship and involvement (with my own emphasis added):

The Tea Party Debate is a truly historic, first-of-its-kind event that will bring conservative candidates for President together to discuss tea party principles, and determine which candidate has the best solutions to lead the United States of America and her people into greater freedom and prosperity.

The debate demonstrates that the tea party, which began as a small grassroots movement, has grown tremendously in size and influence to become a powerful force in American politics.  The Tea Party Debate will focus only on the core principles and values of the tea party movement: limited government, free markets, and fiscal responsibility....

The Tea Party Debate has tremendous significance because it is powered by engaged tea party activists. The Tea Party Debate will be coordinated by Tea Party Express and CNN, with participation and involvement from co-host local tea party groups in every state across the country.  The questions asked of the candidates will all come from the tea party groups and their members — to ensure the debate is about the issues that matter most to the tea party movement.

The poorly-considered and poorly-delivered question about the death penalty from Brian Williams to Governor Rick Perry at the last debate (lamented here) has me exicted to learn that tea party groups  — and not the "lamestream" media — are to ensure questions in this debate focus on the "core principles and values of the tea party movement: limited government, free markets, and fiscal responsibility."  And yet, as the title of this post highlights, I am unsure (but perhaps foolishly hopeful) that at least a few debate questions tonight might reflect the application of these Tea Party "core principles" to our modern, massive and costly, government-run criminal justice systems and programs.

Regular readers know that I believe that anyone with a truly serious and sustained commitment to "limited government, free markets, and fiscal responsibility" must start asking a number of tough questions about huge federal and state government spending on the drug war and mass incarceration.   Here, as just a couple of examples, is how these tough questions might find expression in the tonight's Tea Party Debate:

  • Do you support the bill introduced by Ron Paul and Barney Frank to get the federal government out of the marijuana regulation business (basics here)?  Would you sign or veto such a bill as president if it came to your desk? 

  • Do you consider the modern "War on Drugs" — a federal government program started by Richard Nixon and increasingly funded at the federal level by every President since — to be a classic example of a failed big government program or a notable example of big government success?

  • According to a Pew Center report in 2009, state criminal correction spending has quadrupled in the past two decades, outpacing budget growth in education and transportation (basics here).   Meanwhile, the Justice Department recently wrote to the US Sentencing Commission about federal prison spending and overcrowing (basics here).  Does this data concern you and what do you think this nation's president can or should do about the pure economic costs to taxpayers of modern mass incarceration?

Though I would love to hear the GOP candidates' response to all of these questions, I will be pleasantly surprised if even a single question about the drug war or big-government criminal justice spending comes up tonight.  If there are not any such questions during the Tea Party Debate, I will continue to wodern if the "core principles and values of the tea party movement" really are "limited government, free markets, and fiscal responsibility."

Some recent and older related posts:   

September 12, 2011 at 12:33 PM | Permalink

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Covert Operations (New Yorker)
The billionaire brothers who are waging a war against Obama.
by Jane Mayer

“What they don’t say is that, in part, this is a grassroots citizens’ movement brought to you by a bunch of oil billionaires.”

Posted by: Anon | Sep 12, 2011 1:33:53 PM

I might suggest some additional questions:

-- Do you think prisoners should pay more toward the costs of their custody and treatment, or should the taxpayers have to continue to bear almost the entire burden, as they do now?

-- Timothy McVeigh's taxpayer-funded defense cost almost 14 million dollars even though he was unarguably guilty and entirely unrepentant. Do you think the taxpayers should have to pay unlimited amounts for criminal defense, or should there be a cap?

-- Much of the cost of our criminal justice system stems from the number of repetitive and meritless motions filed by defense counsel, particularly in capital cases. Do you think taxpayers are entitled to recover at least some of this cost by imposing monetary sanctions on lawyers who repeatedly file frivolous motions?

-- When a criminal case has to be re-done because there was ineffective assistance of counsel the first time, do you think the ineffective lawyer ought to pay for the do-over he brought about, or should the taxpayers foot the bill?

-- Do you think the entire economic costs of crime are reflected in spending on prisons, or do you think UNincarcerated criminals create economic (and human) costs by their criminal acts?

Posted by: Bill Otis | Sep 12, 2011 1:55:17 PM

Other issues that could be raised:

How would you address government intrusion on private activities, and the general erosion of 4th Amendment rights, which are a direct result of the drug wars and the war on terror?

Do you believe that the Commerce Clause of the Constitution is expansive enough to encompass federal drug laws, even where the drug or its componenants never cross state boarders?

On a non-criminal justice issue: Please explain the Constitutional basis for federal involvement in regulation of marriage.

Posted by: Ala JD | Sep 12, 2011 2:04:00 PM

Ala JD --

"Do you believe that the Commerce Clause of the Constitution is expansive enough to encompass federal drug laws, even where the drug or its componenants never cross state boarders?"

Suggested answer: "I believe I should defer to the Supreme Court's view that it is expansive enough, as the Court held in Gonzales v. Raich. I would note that Raich was written by Justice Stevens, then the Court's most liberal member and joined in by all the liberal bloc. I would also note that the Court's judgment was joined by the centrist, Justice Kennedy, and by its most conservative member, Justice Scalia. With such a spectrum of Justices having answered the question in the affirmative after much deliberation and review of the precedents, it would be immodest for me to contradict them."

Posted by: Bill Otis | Sep 12, 2011 4:36:35 PM

Ala JD --

"How would you address government intrusion on private activities, and the general erosion of 4th Amendment rights, which are a direct result of the drug wars and the war on terror?"

Suggested answer: "The 4th Amendment forbids only UNREASONABLE searches and siezures. What is reasonable depends in part on the extent of the harm that may result to our citizens from the criminal activities the search is designed to uncover.

Yesterday, we commemorated the 10th anniversary of an attack that killed 3000 people. We cannot allow that or anything similar to happen again. The attack occurred in part because of intelligence failures. In other words, the problem was not that there was excessive "government intrusion;" the problem was that there wasn't enough to infiltrate al Qaeda's activities in this country.

Since then we have learned something. President Bush, whatever his flaws may have been, kept us safe: There was no successful terror attack in this country after 9/11/01. To his credit, President Obama has largely kept in place the mechanisms President Bush adopted, including the Patriot Act.

If elected, I will continue this bi-partisan consensus and remain vigilant that the President's first duty is to secure the physical safety of the American people.

Posted by: Bill Otis | Sep 12, 2011 5:17:16 PM

Should the civil rights of those being prosecuted be totally suspended in order to save the taxpayers money? An additional savings would also be instantly realized by ending the need for federal prosecutors and their associated support staff with the continual drain of taxpayer dollars to support their offices, institutions and imbedded infrastructures.

Posted by: james | Sep 12, 2011 5:18:08 PM

james --

"An additional savings would also be instantly realized by ending the need for federal prosecutors and their associated support staff with the continual drain of taxpayer dollars to support their offices, institutions and imbedded infrastructures."

So we'll have no federal prosecutions of anyone for anything???!!!

Far out.

I'm glad that the defense is at least putting its cards on the table.

Posted by: Bill Otis | Sep 12, 2011 5:23:33 PM

Sorry, I misconstrued one of your previous questions to imply when a persons guilt is unquestionble to begin with why expend taxpayer resources to defend them. Just 'cap' their public defense funds. Evidently you weren't implying that or quite possibly it was just a bit of sarcasm that I missed. I'm sure our representatives on the 'Hill', in this day and age, might even give it 5 seconds of consideration at that.

' -- Timothy McVeigh's taxpayer-funded defense cost almost 14 million dollars even though he was unarguably guilty and entirely unrepentant. Do you think the taxpayers should have to pay unlimited amounts for criminal defense, or should there be a cap?'

Posted by: james | Sep 12, 2011 6:59:58 PM

Here's one you forgot, Bill Otis.

Should prosecutors pay the extra costs to implement portions of prison sentences they sought and for which they failed to present evidence of any legitimate societal need, or should we continue to stick taxpayers with the cost of fulfilling their personal sense of self righteousness?

Posted by: ABE | Sep 12, 2011 7:30:45 PM

james --

1. Whether it's a good idea to abolish federal prosecutions for everything has nothing to do with WHATEVER you thought my question was. The proposition stands (or falls) on its own merit.

2. I didn't suggest that no money be spent on McVeigh's defense. I suggested that 14 million dollars is an absurdly excessive amount.

I'm seeing all over this board that we have a big public funding crisis, and we have to cut money out of the criminal justice system as a result. One obvious place to start is by capping the amount that taxpayers have to shell out for indigent defense.

Would you not agree that McVeigh's public funding should have been halted well before $14 million? Would you not agree that, in the age of pruning, we can no longer afford to spend on criminal litigation without limit?

Posted by: Bill Otis | Sep 12, 2011 7:32:05 PM

ABE --

"Should prosecutors pay the extra costs to implement portions of prison sentences they sought and for which they failed to present evidence of any legitimate societal need, or should we continue to stick taxpayers with the cost of fulfilling their personal sense of self righteousness?"

Please get back to me when you discover that prison sentences are fashioned and imposed by courts not prosecutors.

P.S. At all events, since prosecutors are members of one of the political branches of government, the taxpayers can fire them at the next election. This of course would be odd, according to you Lefties, in light of your constant complaining that prosecutors get elected by promising the taxpayers exactly the toughness your question says they should resent.

Posted by: Bill Otis | Sep 12, 2011 8:03:05 PM

'Would you not agree that McVeigh's public funding should have been halted well before $14 million?'
Would you not agree that, in the age of pruning, we can no longer afford to spend on criminal litigation without limit?

Not knowing what all of those expenditures were for specifically, I can't really believe that particular case represents the norm. Maybe, what logically needs to be reviewed, by both sides, is why those levels of spending were necessary in the first place for this case and work backwards from there. As we all know even government spends well beyond their means for many things that provide no direct benefit to the taxpayer. Why not look at those first rather than chipping away at our basic rightst. After all one YF-22 Raptor stealth fighter runs about $125M and the Pentagon asked Congress for $497 million to be used to shut down the F-22 line instead buying four extra F-22s. So where's the disparity in that?

Posted by: james | Sep 12, 2011 8:22:32 PM

"Do you believe that the Commerce Clause of the Constitution is expansive enough to encompass federal drug laws, even where the drug or its componenants never cross state boarders?"

Suggested answer: "No. No one could fathom that the founders of this country expected the Congress' authority to regulate interstate commerce would justify federal government interference in virtually every aspect of an individual's private life."

Posted by: Anonymous | Sep 12, 2011 10:00:15 PM

Bill, what do you think of the following:


1. When courts reverse a conviction because a prosecutor violated Brady or knowingly presented false evidence, should courts require the offending prosecutor to pay for the cost and expense of the retrial out of his own pocket?

2. With respect to the above, should the offending prosecutor be disbarred?

3. When court have reversed a conviction and freed a defendant from custody because DNA evidence shows the defendant to be innocent, should courts require the prosecutor who tried the case to be incarcerated for the same number of years that the innocent defendant was required to serve?

4. Should all persons who wish to be prosecutors be required to spend 60 days in a county jail before undertaking their duties?

Posted by: anon15 | Sep 12, 2011 10:19:23 PM

anon15 --

1(a) -- Brady violation. Depends on how clear it is that it actually was "exculpatory," a matter that can be a close call.

1(b) -- Intentional presentation of false evidence. Yes, the prosecutor should be required to pay for the re-trial personally.

I will answer the rest of your questions, but not until you have answered one of mine. It's not a one-way street.

My question is the mirror image of yours: When a criminal case has to be re-done because there was ineffective assistance of counsel the first time, should the ineffective lawyer have to pay for the do-over he brought about, or should the taxpayers foot the bill?

In answering this question, please bear in mind that, in order for a defense lawyer to be found so ineffective as to require reversal, he has to have been a total dog. The standard is very tough (a fact about which your side has complained relentlessly). So it's not like he would have made one or two screw-up's. He would have had to be pretty much a total botch. Should he have to pay for the re-trial?

Posted by: Bill Otis | Sep 12, 2011 10:34:01 PM

Anonymous --

Any candidate who so blithely asserted that the powers of Congress are limited in a way contrary to what the SCOTUS decided in Raich would immediately be attacked as disrespecting the rule of law.

Of course if the political branches are indeed free to disregard SCOTUS holdings about the breadth of their power, I assume you're ready to apply that same standard to, e.g., Hamdan v. Rumsfeld. Not so?

Posted by: Bill Otis | Sep 12, 2011 10:45:18 PM

james --

I asked inter alia two questions: (1) Would you not agree that McVeigh's public funding should have been halted well before $14 million? and (2) Would you not agree that, in the age of pruning, we can no longer afford to spend on criminal litigation without limit?"

You respond in relevant part: "Not knowing what all of those expenditures were for specifically, I can't really believe that particular case represents the norm. Maybe, what logically needs to be reviewed, by both sides, is why those levels of spending were necessary in the first place for this case and work backwards from there."

1. I never said that the McVeigh case represents the norm, nor would caps come into play for the norm. They'd come into play in the upper ranges of defense counsel spending.

2. You are also assuming that, as you say, "those levels of spending were necessary." But it's precisely my point that 14 million dollars cannot possibly be necessary for a single case involving one defendant and one act. The question was simple: Did McVeigh detonate the truck in front of the Murrah Building intending to kill large numbers of people inside? It is simply beyond belief that it took defense counsel 14 million dollars to investigate that question. (Indeed, he could have investigated it for zero dollars by simply asking his client, who, as he demonstrated on "60 Minutes," was perfectly willing to tell the entire world).

The defense can't have it both ways, saying that we're in such a budget crunch that thousands of prisoners have to be released before their legally imposed sentences would dictate, but we're still so much rolling in dough that we can allow spending without limit for any defendant who claims he "needs" it.

Posted by: Bill Otis | Sep 12, 2011 11:05:45 PM

Bill:

The next time you bring up Timothy McVeigh, I get an excuse to exercise Godwin's Law.

TM is dead and executed. Do you want to bring back his remains and p--s on them or clone him and execute him again?

No human system is perfect, but the argument works both ways, which you seem unable to grasp.

Posted by: albeed | Sep 13, 2011 12:05:16 AM

albeed --

As long as abolitionists bring up Todd Willingham, who is, in your phrase, "dead and executed," I will bring up Timothy McVeigh.

The question on the table is whether the death penalty should EVER be available. McVeigh is Exhibit A, and I will therefore continue to use his case. Indeed, it's precisely because abolitionists find that case so hard to deal with that you now want to censor any further mention of it.

It might be that your attempt at censorship will work with some people. It won't with me.

Posted by: Bill Otis | Sep 13, 2011 9:36:12 AM

anon: "Suggested answer: "No. No one could fathom that the founders of this country expected the Congress' authority to regulate interstate commerce would justify federal government interference in virtually every aspect of an individual's private life.""

me: but that has been the law of the land for nearly 70 years since Wickard v. Filburn which gave the fedearl government authority to regulate almost any economic activity. While some liberatarians may hate that decision because it does allow for nearly limitless power under the Commerce Clause, its not going anywhere because Democrats and liberals like a strong Commerce Clause for civil rights laws and workplace protections - and non-libertarian Republicans and conversatives and Republicans like a strong Commerce Clause because having uniform business laws rather than a patchwork of state laws serves the interest of business. If you want to argue that the feds shouldn't regular purely intrastate drug marketing and selling, go ahead - there are many good policy reasons why the federal government should only prosecute large scale interstate and international traffickers - I would agree that it should be the state who prosecutes local drug deals and other local crimes and not the feds - but to pretend that the federal government does not have the Constitutional authority to prosecute the local drug crimes simply ignores what the law is.

I mean there are many things to disagree with Bill about, but he's absolutely right about the law here - make your case against federal enforcement of purely drug crimes or other crimes with a minimal connection to interstate and foreign commerce on policy grounds. There are many good arguments to make there.

ginny :)

Posted by: virginia | Sep 13, 2011 11:26:38 AM

Ginny --

"I mean there are many things to disagree with Bill about, but he's absolutely right about the law here..."

I think I might be able to pick myself up off the floor by next week.

Posted by: Bill Otis | Sep 13, 2011 1:51:38 PM

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