Sentencing Law and Policy

A day to focus on an execution and politics

While most of the media and political world will be focused on voting in Indiana and North Carolina, this new AP article spotlights that death penalty observers will be focused on another state:

Georgia moved forward with preparations to execute a man convicted of killing his girlfriend, who on Tuesday night could become the first inmate put to death since the U.S. Supreme Court upheld the constitutionality of lethal injection.  Barring a last-minute reprieve from the courts, William Earl Lynd will be put to death at 7 pm, making him the first prisoner executed since September, when the high court took up a challenge to lethal injection and effectively halted all executions nationwide for seven months.

For anyone who might be eager to combine their interests in politics and the death penalty, I noticed this new article in the April 2008 Virginia Law Review titled "The Supreme Court and the Politics of Death."  Here is the abstract:

This article explores the evolving role of the U.S. Supreme Court in the politics of death. By constitutionalizing the death penalty in the 1970s, the Supreme Court unintentionally set into motion political forces that have seriously undermined the Court's vision of a death penalty that is fairly administered and imposed only on the worst offenders. With the death penalty established as a highly salient political issue, politicians — legislators, prosecutors, and governors — have strong institutional incentives to make death sentences easier to achieve and carry out.  The result of this vicious cycle is not only more executions, but less reliable determinations of who truly deserves the ultimate sanction.

The Supreme Court has recently begun to chart a different — and more promising — approach to death penalty reform.  In two key areas, the Court has recently reinterpreted prior constitutional doctrines in ways that seem designed to counteract death's politics.  These rules determine the type of offenses for which death is a "cruel and unusual" sanction (the Eighth Amendment's capital proportionality standard) and the quality of representation defendants must receive in capital cases (the Sixth Amendment's guarantee of effective assistance of counsel).  Each of these rules has been transformed from doctrines that had little effect on the administration of the death penalty into potent weapons for counteracting the politics of death and promoting the fairness and rationality of the capital sentencing process.

Cooperation discount leads to buzz about DOJ investigating Hill happenings

This item from Politico highlights how a massive criminal justice system that encourages cooperation can get a lot of persons nervous real fast, even on Capitol Hill:

The news was buried deep in a Page Two story in Saturday’s Washington Post, but it’s gotten the city’s lawyers chattering.  The Department of Justice, according to a confidential source in the Post article, is investigating whether members of Congress have been improperly using staff and office resources.

The Justice Department declined to comment, but that hasn’t diminished the buzz on Capitol Hill. “Nobody’s heard anything,” said Andrew Herman, a congressional ethics attorney who by Monday morning had already fielded a number of calls from nervous lawyers.  “There’s just concern that this could become another House banking investigation.”  If Justice is, in fact, looking into the way that members of Congress use taxpayer dollars, Herman said the concern might be justified.  “I’m sure that there are certainly times that staff is used inappropriately. How could there not be?” he said, though he added that he had no specific examples of irregularities.

It’s unclear how serious the investigation is or whether there actually is an investigation. In a story largely devoted to the sentencing of Laura I. Flores, a former staffer for Reps. Jane Harman (D-Calif.) and Neil Abercrombie (D-Hawaii), the Post reported that “prosecutors petitioned to reduce [Flores’] penalty in exchange for help with an inquiry into whether lawmakers used congressional staff members and resources to support their political campaigns, according to a source familiar with the case.” Flores was sentenced on Friday to six months in prison after pleading guilty in January to wire fraud.

Will the 2008 Prez candidates ever seriously discuss modern incarceration realities?

I have largely given up my hope that the 2008 presidential campaign will even give sustained attention to crime and punishment issues.  Nevertheless, this morning's front-page Washington Post article highlights how prison spending is not just a crime and punishment issue:

Between 1987 and last year, states increased their higher education spending by 21 percent, in inflation-adjusted dollars, according to the Pew Center on the States.  During the same period, spending on corrections jumped by 127 percent.  In the Northeastern states, according to the Pew report, prison spending over the past 20 years has risen 61 percent, while higher education spending has declined by 5.5 percent....

Michigan has become one of the few states that actually spend more on prisons than on higher education -- about $2 billion for prisons, and $1.9 billion in state aid to its 15 public universities and 28 community colleges.  "It's insane," said Barbara Levine of the Citizens Alliance on Prisons and Public Spending in Lansing. "The governor is always talking about how we need to be high tech.  But these days, the best career opportunity is to get a job as a prison guard."...

"You've got two decades of failed policies," said Laura Sager a consultant in Michigan for Families Against Mandatory Minimums. She said mandatory sentencing laws and tough penalties for drug offenses in the 1980s "bloated prisons and prison populations, and the taxpayer is paying a very high price."  Now with states struggling with budget deficits, she said, "you have pressures that make it palatable to take a second look."

It is sad and telling that expensive mass incarceration realities, which have been building for years, are only now starting to get sustained major media attention.  It is even sadder that the media and the pundits have consistently failed to ask the 2008 presidential candidates any serious (or even not-so-serious) questions about mass incarceration and whether anyone has a plan to cut taxes by effectively and strategically cutting prison populations.

Some related general posts on Campaign 2008:

• How the media can do better: ask the candidates tough crime and punishment questions
• FAMM suggests sentencing questions for the candidates
• Stuntz nails (some) reasons why Democrats are perhaps most responsible for modern mass incarceration
• Politics and the war on drugs 
• Should criminal justice reform be the new civil rights movement?
• Is there growing public concern with sentencing and prison reform?
• Is ignorance bliss as Campaign 2008 ignores crime and punishment issues?

Some related posts on specific candidates' positions and speeches:

• A retroactive litmus test on leading Democratic candidates
• Is Senator Clinton to the right of Justice Scalia on sentencing issues?
• Senator Clinton making a campaign offensive on crime
• Aren't extreme sentences and mass incarceration a "tired philosophy that trusts in government more than people"?
• So much in (and missing from) Senator Clinton's anti-crime proposal
• "Where candidates stand on crime, death penalty"
• Clinton and Obama, crime and punishment
• Race, class and criminal justice in campaign 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...

Some related posts:

• How the media can do better: ask the candidates tough crime and punishment questions
• "Where candidates stand on crime, death penalty"
• Interesting commentary on 2008 politics of death
• Clinton and Obama, crime and punishment
• A retroactive litmus test on leading Democratic candidates
• Is Senator Clinton to the right of Justice Scalia on sentencing issues?
• Race, class and criminal justice in campaign 2008
• Politics and the war on drugs 
• Should criminal justice reform be the new civil rights movement?   
• Aren't extreme sentences and mass incarceration a "tired philosophy that trusts in government more than people"?

Why aren't the terrorist pardons during the Clinton Administration garnering more attention from the MSM?

Because I look at much of the news from a criminal justice perspective, I find the complaints that the MSM is biased against Senator Clinton to be somewhat comical given the "free pass" she has gotten on a lot of questionable criminal justice decisions made during the Clinton Administration.  The most obvious example of these realities comes from the attack on Senator Obama concerning connections to a member of the Weather Underground and toughness on terrorism.  If this is a serious campaign issue, the mainstream media ought to be closely re-examining at, and asking Senator Clinton hard questions about, the pardons given during the Clinton Administration to two Weather Underground members and to members of a group of Puerto Rican terrorists (FALN). 

Fortunately, some thoughtful bloggers are trying to make sure these pardon issues does not get lost in all the obsession over Senator Obama.  The blog Pardon Power, helpfully, has had an on-going series of effective posts on this front, including recently:

• Campaign 08: Into the Abyss
• Campaign 08: Oh, The Humanity! Wolfson on Terror Pardons
• Campaign 08: Terrorist Pardons Revisited

In addition, as detailed in these posts, a Mother Jones blog has been pursuing this story in recent days:

• Clinton Bashes Obama's Weathermen Connection, But What About Her Own?
• A Tale of Clintonian Spin: Trying to Blow Past the Weathermen Question
• Clinton Ducks the Weathermen Question

My sense from reading these posts (combined with knowing a bit about a lot of ugly stories surrounding President Bill Clinton's various pardon decisions) leads me to think there might by a lot more to discover if the media we to do some serious investigative journalism about these pardons and Senator Clinton's possible input.  Sadly, I do not get the sense, even with seemingly endless discussion of the Democratic race, that many in the MSM are seriously trying to develop new stories rather than just recycling the standard narratives.

"Take a Nibble Out of Crime"

The title of this post is the title of this reaction over at The New Republic to Senator Clinton's recently announced crime-fighting proposals.  Here are parts of the commentary:

Hillary Clinton gave a major policy speech on crime in Philadelphia one week ago.... Clinton's views on sentencing retroactivity, for the tens of thousands who have been locked up under the current cocaine guidelines, are of equal importance.  Commuting prisoner sentences to terms they would have served under the new law is, of course, the right thing to do.  But in Iowa, Clinton told viewers of the Black/Brown debate: "In principle I have problems with retroactivity," she said. "It's something a lot of communities will be concerned about as well." Which communities?  Why?

The drug wars, addressed intelligently on our site by former Baltimore Mayor Kurt Schmoke, are not a by-the-wayside policy issue on which Clinton can smudge her former stances without scrutiny.  What's more, this anti-crime gambit looks to be an attempt to reverse a monthslong pattern of tacking rightward on criminal justice policy (back when Clinton still had a "general election strategy").  In New Hampshire, for example, Clinton tweaked Barack Obama for his liberal stance on "criminal defendants' rights" and his "extremely progressive record" in Chicago. Who knows to what that refers.

By the Philly address — never having answered that important question on retroactivity — Clinton was putting $1 billion up for grabs among states that want to commit resources to lowering rates of recidivism.  But being unjustly punished and backsliding into crime are not totally unrelated issues; longer jail terms erode workplace skills, fossilize social attitudes and drain meaningful support systems — all of which are critical to the well-being of a sucessful parolee.  That she would pay for her ambitious $4 billion plan by identifying "unnecessary and outdated corporate subsidies for elimination" (rather than housing and processing costs for thousands of crack offenders) only spotlights the blinders that make real reform in government seem like make-believe.

Some posts on crime and punishment and the 2008 campaign:

• Senator Clinton making a campaign offensive on crime
• So much in (and missing from) Senator Clinton's anti-crime proposal
• How the media can do better: ask the candidates tough crime and punishment questions
• "Where candidates stand on crime, death penalty"
• Interesting commentary on 2008 politics of death
• Clinton and Obama, crime and punishment
• A retroactive litmus test on leading Democratic candidates
• Is Senator Clinton to the right of Justice Scalia on sentencing issues?
• Race, class and criminal justice in campaign 2008
• Politics and the war on drugs 
• Should criminal justice reform be the new civil rights movement?   
• Aren't extreme sentences and mass incarceration a "tired philosophy that trusts in government more than people"?

Will the Baze decision (and the Kennedy argument) make the death penalty a hot political issue?

As regular readers know, I have been eagerly awaiting a time when the death penalty is a major political issue in the 2008 campaign.  Notably, Pennsylvania, North Carolina and Indiana — not no mention the federal government — all have very interesting death penalty practices and politics.  And, with the Baze lethal injection ruling today and the Kennedy child rape oral argument, the news cycle will surely be focused on death penalty issues over the next few days.

I am very hopeful and eager for reporters and pundits to ask all the major candidates a lot of hard questions about the death penalty, in part because I do not think any of them have good talking points on the intricate (and politically complicated) "culture of life" issues that the modern system of capital punishment raises.  I am not optimistic that we will have a sober or sensible political discussion of the modern death penalty, but at least we may have a sound-bite one that will provide grist for my blogging mill.

Some recent related posts:

• Race, class and criminal justice in campaign 2008
• How the media can do better: ask the candidates tough crime and punishment questions
• Might crime and punishment finally start drawing the attention of the candidates and the media?
• Is ignorance bliss as Campaign 2008 ignores crime and punishment issues?
• "Where candidates stand on crime, death penalty"
• Interesting commentary on 2008 politics of death
• Candidates asked "what would Jesus do" about the death penalty
• So much in (and missing from) Senator Clinton's anti-crime proposal

So much in (and missing from) Senator Clinton's anti-crime proposal

As first noted here, Senator Clinton proposed to spend $4 billion a year on anti-crime measures in a big speech in Philadelphia today.  Details on her proposal are now available in this loooong press release on her website.  Interestingly, the press release is titled "Hillary Clinton Sets Goal Of Cutting Murder Rate In Half: 'Solutions For Safe & Secure Communities Now' Plan Will Provide 100,000 New Cops And Invest $1 Billion To Reduce Number Of Repeat Offenders."  There is almost too much included in the plan to take it all in.

Perhaps what is as notable as what's in the Clinton plan is what is missing.  For example, consider this press report on the plan, headlined "Clinton gun shy in Pennsylvania crime address."  Here are snippets:

Hillary Clinton today declared a goal of cutting the nation's big-city murder rate in half, addressing an issue that has dominated politics here but avoiding a mention of the one thing that local officials see as a consensus solution to their crime problem: new gun laws....

Clinton talked about gangs and drugs as a cause of homicides, but mentioned guns only in passing. She noted “a direct correlation between the illegal gun sales and homicides,” as she proposed a new initiative to crack down on interstate gun trafficking and allow federal agencies to share information on the transfer of guns.  In addition, Clinton said she would work to renew the assault-weapons ban, signed by President Clinton in 1994 but allowed to lapse a decade later.

"She's being respectful of what's really her base," said Ken Lawrence, a Pennsylvania Democratic consultant neutral in the presidential campaign. "But I don't know how you talk about homicide in Philadelphia without talking about guns."

Relatedly, I noticed that the Clinton press release says nothing about sentencing reform issues and says very little about mass incarceration.  In addition, there was nary a mention of the death penalty, pro or con, or about the on-going debate over lethal injection protocols or about wrongful convictions in capital cases and non-capital cases. 

Interestingly, regarding mandatory minimums, the press release does have this notable line: "At the federal level, Hillary will reform mandatory minimums for non-violent offenders, starting by eliminating the mandatory minimum for simple possession of crack cocaine and eliminating the disparity between crack and powder cocaine."  Of course, she could mean that she plans to increase the mandatory penalty for powder cocaine in order to deal with the crack/powder disparity, but I seriously hope that's not exactly what she has in mind.

Senator Clinton making a campaign offensive on crime

A helpful reader pointed me to this exciting news from the presidential campaign trail:

Democrat Hillary Rodham Clinton is proposing to spend $4 billion a year on anti-crime measures, including programs meant to reduce the number of ex-convicts who return to prison.  The money also would help communities hire more police officers and "community-oriented prosecutors."

Under the New York senator's plan, to be detailed Friday in a speech in Philadelphia, states would compete for $1 billion in annual grants to combat recidivism. It would "promote tough but fair" changes to probation practices and to existing programs meant to steer non-violent drug offenders away from prison, her presidential campaign said in an outline provided early Friday. The goal is to make punishment more certain for those who violate their probation, while also enhancing efforts to help former drug users stay clean and thereby avoid prison, campaign aides said.

They said Clinton would pay for the $4 billion initiative with savings to be identified by a commission she will assign to "identify unnecessary and outdated corporate subsidies for elimination."  Groups that oppose deficit spending urge campaigns to be more specific in saying how they will pay for new programs. 

Clinton's plan would hire 100,000 new police officers "to address crime, through a modernized personnel grant program." It would spend $250 million a year on "community-oriented prosecutors."

Compared to earlier presidential campaigns, especially those in the 1970s, this year's contest has focused relatively scant attention on crime, with the Iraq war and economic woes dominating the debate. Clinton, noting that violent crime has begun to rise after several years of decline, will focus on the subject Friday as she competes with Sen. Barack Obama for votes in Pennsylvania's April 22 primary.

Here was the first-cut reaction of the thoughtful person who sent me a link to this story: "It appears that your earlier posts regarding crime emerging as a campaign issue have proved prescient.  This is probably a smart -- though cynical -- move on Clinton's part; based on anecdotal experiences growing up in the Pittsburgh area, I suspect that the crime issue will play well and possibly stem Obama's growing momentum in PA."

Here is my first-cut reaction: I am very, very excited that Senator Clinton is starting focus seriously on "anti-crime measures," but I am highly suspect that she is going to be able to effectively fund $4 billion initiative with savings from the elimination of "unnecessary and outdated corporate subsidies for elimination."  How about instead finding extra money by focusing instead on fixing unnecessary and outdated extreme sentencing terms, like those for non-violent crack offenders.  Oh wait, Senator Clinton was against crack retroactivity, so it seems that being tough on corporations, rather than kind to over-sentenced offenders, is the economic key to her anti-crime plans.

Some posts on crime and punishment and the 2008 campaign:

• How the media can do better: ask the candidates tough crime and punishment questions
• Might crime and punishment finally start drawing the attention of the candidates and the media?
• Is ignorance bliss as Campaign 2008 ignores crime and punishment issues?
• "Where candidates stand on crime, death penalty"
• Interesting commentary on 2008 politics of death
• Candidates asked "what would Jesus do" about the death penalty
• Clinton and Obama, crime and punishment
• A retroactive litmus test on leading Democratic candidates
• Is Senator Clinton to the right of Justice Scalia on sentencing issues?
• Race, class and criminal justice in campaign 2008
• Politics and the war on drugs 
• Should criminal justice reform be the new civil rights movement?   
• Aren't extreme sentences and mass incarceration a "tired philosophy that trusts in government more than people"?

FAMM suggests sentencing questions for the candidates

I just noticed that Families Against Mandatory Minimums has this new newsletter focused on the ways in which the "next president of the United States will have the power to influence sentencing policy for the next four to eight years."  Among many interesting facets of the newsletter is a small section that suggests these "sample questions for candidates":

If your loved one is a first-time offender:  Since my loved one (son, wife, etc.) — a first-time, nonviolent drug offender — began serving __ years for a (drug conspiracy, selling marijuana, etc.), I have learned about our lengthy mandatory minimum drug sentences. Do you support repealing mandatory sentences in favor of a structure that allows courts to consider the facts of the case and choose an appropriate sentence, and why?

If you are a concerned citizen:

• It costs at least $22,000 a year to incarcerate a nonviolent drug offender, and five, 10 and 20-year mandatory sentences are commonplace.  What more cost-effective ways of protecting public safety do you support?
• Mandatory sentences are under intense scrutiny for being overly harsh, racially biased and ineffective at reducing demand for drugs.  What do you plan to do to ensure fair and proportionate sentences for all defendants?
• Would you support repealing mandatory sentences in favor of a structure that allows courts to consider the facts of the case and choose an appropriate sentence?

Is ignorance bliss as Campaign 2008 ignores crime and punishment issues?

Writing here in The New Republic, Robert Gordon has a notable commentary entitled "Criminal Intent: The presidential candidates need to stop ignoring America's crime problem — and start considering innovative solutions."  Here is how the commentary begins:

Here's a funny thing about this presidential campaign season: Two crime dramas — "The Wire" and "Law & Order" — have gotten more attention than actual crime.  Twenty years ago, with the crack epidemic peaking, George Bush rode to victory using Willie Horton against Michael Dukakis.  Now, with the violent crime rate one-third lower, Republicans no longer try to paint Democrats as soft on crime, and Democrats no longer feel the need to prove themselves tough on the issue.  Campus shootings in Virginia and Illinois have barely registered politically, and President Bush's evisceration of aid to local cops has received little attention on the campaign trail. Even Rudy Giuliani, who made his name fighting murder and mayhem in New York, included nothing on crime among his major campaign planks.

Although the end of law-and-order demagoguery is welcome, America still has a crime problem — or, rather, two crime problems.  On one hand, the crime drop of the 1990s has ended, without delivering real relief to many communities.  For example, while murder is down dramatically in New York and Chicago, homicide rates in Baltimore and Detroit are about the same as in 1995 — and 25 percent higher than New York's rate at its 1990 peak. In many inner cities, violence and the fear of violence remain central facts of life that drive away jobs, small businesses, and successful families. Overall, the country's homicide rate is still three times higher than England's or Australia's, and twice that of Canada. According to the University of Chicago's Jens Ludwig, crime costs the United States on the order of $2 trillion a year.

At the same time, America's incarceration rate — the highest on earth — continues to balloon. According to a recent report from the Pew Center on the States, one in 100 U.S. adults is now behind bars, the largest percentage in our history.  The racial imbalance is even more disturbing: One in 106 white men is in prison, compared to one in 15 African-American men.  Overall, our incarceration rate is four times higher than it was in 1980, and more than five times that of England or Canada.

This commentary makes an astute observation about the apparent eagerness for the 2008 campaign to ignore crime and punishment issues.  However, the essay fails to take Bill Clinton to task for transforming the Democratic Party into a party that has — in my view, wrongly — concluded that "law-and-order demagoguery" is essential to winning elections. 

Though this commentary starts by noting the Willie Horton ad that played a role in the 1988 Bush-Dukakis election, it fails to highlight that Bill Clinton in 1992 and throughout his presidency (directly and indirectly) urged Democrats to be involved in "law-and-order demagoguery."  It is against this backdrop that it was so telling and so sad that Senator Hillary Clinton this year was the only Democrat to speak out against the retroactivity of the crack guidelines.  That choice, in my opinion, showed that Senator Clinton still believe that electoral success (even against fellow Democrats) is to be achieved through "law-and-order demagoguery."

Give these realities, it may be an good that so far none of the major Presidential candidates are talking about crime and punishment issues.  The Clintonian approach now seems to be to use these issues as a wedge to beat up on fellow Democrats, and that approach likely ensures that we get policies and politics (at least at the national level) that contribute to both the crime problems that the TNR piece discusses.   

Some posts on crime and punishment and the 2008 campaign:

• How the media can do better: ask the candidates tough crime and punishment questions
• Might crime and punishment finally start drawing the attention of the candidates and the media
• "Where candidates stand on crime, death penalty"
• Interesting commentary on 2008 politics of death
• Candidates asked "what would Jesus do" about the death penalty
• Clinton and Obama, crime and punishment
• A retroactive litmus test on leading Democratic candidates
• Is Senator Clinton to the right of Justice Scalia on sentencing issues?
• Race, class and criminal justice in campaign 2008
• Politics and the war on drugs 
• Should criminal justice reform be the new civil rights movement?   
• Aren't extreme sentences and mass incarceration a "tired philosophy that trusts in government more than people"?

Cross-posted at PrawfsBlawg

Is there growing public concern with sentencing and prison reform?

This new article, headined "Prison reform on public radar," suggests that the public is starting to take note of some sentencing and prison issues.  I am not sure this is true, in part because the leading presidential candidates have so far largely avoided any serious discussion of crime and punishment issues.

That said, The Sentencing Project this week has produced an exciting new resource for sentencing fans who are also political junkies:

The Sentencing Project is pleased to publish a guide to the 2008 Presidential Candidates' Platforms on Criminal Justice. This guide provides information on a range of key criminal justice issues, including sentencing policy, reentry, death penalty, and felony disenfranchisement.

The Sentencing Project is a nonpartisan public policy organization that does not support or oppose the candidacy of any candidate for public office.  This document is designed to make the public better aware of the candidates' positions on criminal justice policy, an issue that has received relatively little attention in the current political debate.  Voters should learn all they can about the candidates on a range of issues and should not rely on any single source of information before making their decision.

Good news for criminal defense lawyers who want to run for office?

In this post a few weeks ago, I linked to this Newsday article providing a long account of Senator Clinton's work as a criminal defense attorney three decades ago.  The Newsday article seemed to be written to provide talking points against HRC because of her work on behalf of an accused rapist: it stressed that "a 27-year-old Hillary Rodham, acting as a court-appointed attorney, attacked the credibility of a 12-year-old girl in mounting an aggressive defense for an indigent client accused of rape in Arkansas."  Interestingly, though, this story did not end up having any legs in the heated 2008 campaign; I cannot even recall seeing any legal blogosphere discussion of this article.

But now I see this notable new article from the American Lawyer, which asks "Is Clinton's Corporate Law Background Hurting Her Candidacy?".  Here are snippets from this very interesting article:

An inarguable fact — and lawyers love inarguable facts! — is that Hillary Clinton spent the longest stretch of her professional life working in a corporate law firm. From 1977 to 1992 she worked as a lawyer in the firm of Rose, Nash, Williamson, Carroll, Clay & Giroir (renamed Rose Law Firm in 1980) in Little Rock, Ark.  She devotes a single sentence to these years on her campaign Web site: "She continued her legal career as a partner in a law firm." (And this, in a section called "Mother and Advocate.")...

The ability to argue all sides of an issue is a hallmark of the lawyerly mind.  Hillary's ability to assert moral residency on different ideological sides of an issue showed itself soon after she joined the Rose firm....

Neither Hillary Clinton nor the average corporate law partner is likely to make anyone's blood jump or heart sing.  When you are in trouble, however — real trouble — it may be that the person you want to see isn't the guy who wows you with his wit and charisma, but someone who has really done her homework, pored over all the boring details, and then gone back over them again, just for fun.  It's pretty clear that the country is in real trouble. Bridges are falling down; the stock market is all over the place; and let's not even bring up Iraq or Sudan.  This might or might not be the right time to look past Hillary Clinton's cool, corporate, bill-by-the-hour sensibility, her lawyerly inclination to avoid risk and run everything past the pollsters, to smile and keep a stiff upper lip because appearance and propriety matter more than most things — and certainly more than impropriety.

So, all you wanna-be lawyer-pols out there, it seems your political future could be hurt more by time in a corporate law firm than from time practicing criminal defense.

Cross-posted at PrawfsBlawg (under a different post title).

Might crime and punishment finally start drawing the attention of the candidates and the media?

After tomorrow's Mississippi primary, there will be no votes cast in the presidential races for six weeks.  This  rest period should give the candidates and the media a chance to focus on important issues facing the national that have so far gotten little attention during the crazy cross-country sprint that we've seen since Iowa voters got the primary season started a little over nine weeks ago.  Of course, I am hoping that crime and punishment issues come to the forefront during this valuable quietus.

Notably, the states garnering the most media attention right now — Florida, Michigan and Pennsylvania —all have some important state criminal justice issues worthy of the candidate's and the media's time and attention: Florida continues to struggle with significant felon disenfranchisement problems; Michigan is one of a few states now spending more money on its prison system than on higher education; Pennsylvania has one of the nation's largest death rows, but it has not executed anyone in nearly a decade.

Some posts on crime and punishment and the 2008 campaign

• How the media can do better: ask the candidates tough crime and punishment questions
• "Where candidates stand on crime, death penalty"
• Interesting commentary on 2008 politics of death
• Candidates asked "what would Jesus do" about the death penalty
• Clinton and Obama, crime and punishment
• Will sentencing issues surface in the Clinton-Obama battle for black votes?
• Race, class and criminal justice in campaign 2008
• Politics and the war on drugs 
• Should criminal justice reform be the new civil rights movement?   
• Interesting new op-ed on crack sentencing and clemency
• Aren't extreme sentences and mass incarceration a "tired philosophy that trusts in government more than people"?

Exposing the (racist?) hypocrisy of Clintonian speeches without solutions

I am pleased to see this new piece at the Huffington Post, titled "Hillary, Bill and Obama on Crack," is trying to bring the Clintons to account for their disappointing and very telling pandering on federal sentencing issues.  Here are the basics: 

While Bill Clinton is apologizing for not having done more to reduce the disparity in sentencing for crack and powder cocaine that is in part responsible for putting one in nine young black men in prison, his wife opposes even the most modest attempt to fix the problem.

Hillary Clinton has come out against making retroactive the small change in sentencing guidelines that allows some people convicted under the overly harsh crack laws to have their sentences reviewed by a judge, and if they are found eligible, given early release.  Most blacks affected will still serve more than a decade in prison for a nonviolent crime for which whites often escape incarceration entirely — but nevermind. Hillary has bought into fears that this means a sudden massive release of an army of Willie Hortons....

As her husband did before her, when it comes time to make a choice between something that can be used as a political tool against her or doing the right thing and explaining the complexity, Hillary chooses expedience.

It's great to hear that Bill regrets sacrificing the lives of IV drug users and their sexual partners and children to his fear of being demagogued on needle exchange and now to learn that he opposes his own policies on drug sentencing.  But it sounds like Hillary will be saying the same things only after she leaves office if she wins it — when it means absolutely nothing.

Some related prior posts of mine on race, sentencing and the 2008 campaign:

ON CLINTONIAN PANDERING

• A retroactive litmus test on leading Democratic candidates
• Seeking to clear up Clintonian confusion on crack retroactivity
• More questions about Clinton's opposition to crack guideline retroactivity
• Cracked history: How Hillary Clinton really "played the race card" and Sean Wilentz failed to notice
• Senator Clinton talks a good game on sentencing reform
• "Where candidates stand on crime, death penalty"
• Is Senator Clinton to the right of Justice Scalia on sentencing issues?

ON RACE, CRIME AND THE 2008 CAMPAIGN

• Clinton and Obama, crime and punishment
• Will sentencing issues surface in the Clinton-Obama battle for black votes?
• Race, class and criminal justice in campaign 2008
• Politics and the war on drugs 
• Major conference on race and criminal justice
• Should criminal justice reform be the new civil rights movement?   
• Interesting new op-ed on crack sentencing and clemency
• Aren't extreme sentences and mass incarceration a "tired philosophy that trusts in government more than people"?

Senator Clinton talks a good game on sentencing reform

A helpful reader sent me this link from a Vibe Magazing Q&A with Senator Hillary Clinton. This portion is especially notable in light of Senator Clinton's expressed opposition to crack retroactivity:

VIBE: In your speech, you talked about having first, second, and third chances for children. In the last ten years the rate of incarceration of women has increased exponentially. I don’t think the average person realizes that it’s not 50% or 100%, it’s like 750% in the last thirty years. There are a disproportionate number of African-American men and women who are going to be released from prison with felony convictions. What do we do about that group of people who are effectively disenfranchised when they come out?

CLINTON: Number one, we need to divert more people from the prison system. We have too many people in prison for non-violent drug offenses, which disproportionately impacts on the African-American community. That’s why I’ve been a strong advocate of eliminating the disparity between crack cocaine and powder cocaine [sentencing].

There may have been a reason for it 25 years ago but there isn’t any justification for it now.  But it also means that in the prisons themselves, we’ve got to get back to the services that used to be there. They have mostly been eliminated — GED programs, college credit programs, drug and alcohol abuse programs — I mean, it is like a wasteland.  We put too many people in there and then we basically forget about them. And then when people come out we need a system of second-chance programs. And we need to move to restore people’s rights.  They need to feel like they’ve done whatever time they’re supposed to do and now they are back as a full participant. So we need a network of job-training programs, of housing programs, of civic engagement and education programs.

And there are some good examples around. The Fortune Society in New York does a really good job.  Other places like Greyston Bakery in Yonkers, NY that hires ex-offenders and trains them. We can do this on a larger scale than what we’re doing now. And a lot of the job training programs we used to have in this country, which has been decimated, need to be brought back so we can, as I have argued, put people to work in green collar jobs. We should be training people; we should be doing that in the prisons.  We should be giving people skills that are going to be part of the economy of the future.

Cracked history: How Hillary Clinton really "played the race card" and Sean Wilentz failed to notice

Writing at length in the New Republic, historian Sean Wilentz throws strong charges at the Obama campaign in this piece titled, "Race Man: How Barack Obama played the race card and blamed Hillary Clinton."  Though the interesting piece should be read in full, I find most telling that Wilentz does not even mention the most seeming racialized decision that Hillary Clinton has made during the campaign, namely her remarkable decision in December to oppose retroactive application of the new crack guidelines.

As I highlighted in this first post, the only prominent opponents to retroactivity for the new USSC guidelines have been President Bush's Justice Department (noted here), Republican members of the House Judiciary Committee (noted here), and Senator Hillary Clinton.  I was so disappointed by Senator Clinton's position --- and have blogged about it so much --- because it seemed to be a racialized decision that echoed her husband's tendency to talk a good game about racial justice, but then actively support criminal justice laws that have well-known and pernicious racial inequities.

To the extent that anyone has justifiable complaints about race in the campaign and the media's coverage, I think the complaints should be focused on the media's failure (and perhaps also the Obama campaign's failure) to demand that Senator Clinton explain the basis for her position on this and other racialized criminal justice issues.

Some related prior posts of mine on race, sentencing and the 2008 campaign:

• A retroactive litmus test on leading Democratic candidates
• Seeking to clear up Clintonian confusion on crack retroactivity
• More questions about Clinton's opposition to crack guideline retroactivity
• Is Senator Clinton to the right of Justice Scalia on sentencing issues?
• Clinton and Obama, crime and punishment
• Will sentencing issues surface in the Clinton-Obama battle for black votes?
• Race, class and criminal justice in campaign 2008
• Politics and the war on drugs 
• Major conference on race and criminal justice
• Should criminal justice reform be the new civil rights movement?   
• Interesting new op-ed on crack sentencing and clemency

Hillary Clinton as a criminal defense lawyer

This big Newday article provides me with proof that I can still learn something new about someone whom I thought I knew everything about.  Here are small snippets of a long piece that may be an especially interesting read for law student and law professors:

In 1975, a 27-year-old Hillary Rodham, acting as a court-appointed attorney, attacked the credibility of a 12-year-old girl in mounting an aggressive defense for an indigent client accused of rape in Arkansas —  using her child development background to help the defendant....

In her 2003 autobiography "Living History," Clinton writes that she initially balked at the assignment, but eventually secured a lenient plea deal for Taylor after a New York-based forensics expert she hired "cast doubt on the evidentiary value of semen and blood samples collected by the sheriff's office."...

"She was vigorously advocating for her client.  What she did was appropriate," said Andrew Schepard, director of Hofstra Law School's Center for Children, Families and the Law.  "He was lucky to have her as a lawyer ... In terms of what's good for the little girl?  It would have been hell on the victim.  But that wasn't Hillary's problem."...

The politics of clemencies and pardons in Campaign 2008

I often lament that sentencing issues have not been significant political issues of late, especially because the shifting focus to Ohio and Texas should justify some discussion of death and dollars in the two leading execution states.  Fortunately, folks interested in Campaign 2008 and clemency issues should be sure to check out Pardon Power, where one can find these notable recent posts:

• Campaign 08: Pardoned by Bill. Campaigning for Hillary
• Campaign 08: Whitewater Pardon Revisited
• Campaign 08: Hillary Bombs Again!

Of course, it is not only Democrats with some pardon baggage.  Today I saw for the first time the cool political button pictured here, which parodies President Bush's commutation of Scooter Libby's prison sentence. 

Whether the issue is the Libby commutation, or Bill Clinton's ugly clemency record, or the calls for a commutation for the former Border Agents now serving long prison terms, I suspect that clemency issues will get some real traction at some point in the 2008 campaign.  Exactly when and by whom the issue gets raised will be interesting to watch.

Aren't extreme sentences and mass incarceration a "tired philosophy that trusts in government more than people"?

This phrase in John McCain's speech last night really caught my attention as a sentencing geek: in his most-quoted line, Senator McCain cautions against "the false promises and failed policies of a tired philosophy that trusts in government more than people."  Though I know this is means as an attack on liberal social policies, it strikes me as an especially effective attack line against "tough-on-crime" political rhetoric that seeks to increase incarceration for any and all criminal offenses.

Consider this issue, for example, in the context of white-collar prosecutions and sentencing.  After the Enron scandal, sentences for white-collar crimes went up dramatically.  But this "tough-on-crime" approach did not prevent all the mortgage fraud and predatory practices that helped contribute to the current economic woes.

Of course, an even more obvious example is the seemingly endless "war on drugs."  As long sentences for all sorts of non-violent drug crimes continue to be imposed,  I cannot think of a more fitting setting in which we see, year-in and year-out, politicians promoting "false promises and failed policies of a tired philosophy that trusts in government more than people."

"Where candidates stand on crime, death penalty"

The title of this post is the title of this new article in the San Francisco Chronicle.  Before even reading the article, I already knew that all the 2008 presidential candidates are generally against crime and generally for the death penalty, but the article usefully provides a bit more nuance that its headline. Here are some long snippets from a very notable article:

With the Democratic nomination still up in the air after the Super Tuesday primaries, the evolving stances of Clinton and Obama on crime and punishment offer a point of comparison for voters in upcoming primaries, including Tuesday's votes in Virginia, Maryland and the District of Columbia. Although Clinton and Obama, both lawyers, have some important differences, their positions on two of the most politically sensitive crime issues — the death penalty and gun control — have converged....

The two differ on crime-related issues that have a lower profile but affect many thousands of prisoners, most of them minorities — the disparity between sentences for offenses involving crack and powder cocaine, and the merits of federal mandatory-minimum sentencing laws.  On both, Clinton lines up with the prosecution, Obama with the defense.

Such disagreements scarcely exist on the Republican side. John McCain, Mitt Romney (who dropped out of the race Thursday) and Mike Huckabee are equally fervent in their support of the death penalty, opposition to gun control, allegiance to the war on drugs and abhorrence of liberal judges, while occasionally accusing one another of backsliding.  One note of dissent comes from Huckabee, the former Arkansas governor, who opposes three-strikes sentencing laws, saying they have "created a system that is overrun with people, and the cost is choking us." But the real dissident in the Republican race is Paul, the Texas libertarian, who opposes the death penalty, favors drug decriminalization and thinks the federal government has far too big a presence in law enforcement....

It's true that most crime is prosecuted locally.  But any president can exert a powerful influence on crime policies by backing or blocking legislation on wiretapping, guns, corporate wrongdoing or defendants' rights; by appointing judges, the attorney general, U.S. attorneys, and members of agencies like the U.S. Sentencing Commission; and by deciding whether federal prosecutors should chiefly target gangs, drugs, pornography or securities fraud. 

Crime is seldom a prominent issue in presidential primaries, largely because the front-runners in each party typically take similar positions. But the subject can explode on Democrats in a November election. The prime example was in 1988, when Massachusetts Gov. Michael Dukakis, who had led Republican Vice President George Bush in early opinion polls, came under withering attack for his support of a furlough program that allowed a convicted murderer named William Horton — dubbed "Willie" in campaign ads — to leave prison in 1986 and rape a Maryland woman.

Dukakis was also the last major-party nominee to oppose the death penalty. He was hurt politically when he responded without apparent emotion to a debate question about whether he would favor execution for someone who raped and murdered his wife.  Bill Clinton, by contrast, interrupted his 1992 presidential campaign and flew back to Arkansas for the execution of a brain-damaged killer named Rickey Ray Rector.  As president, Clinton signed a 1994 crime bill that included a major expansion of the federal death penalty; according to the New York Times, first lady Hillary Clinton lobbied fellow Democrats for that provision. Bill Clinton also signed a 1996 law restricting state prisoners' ability to appeal their convictions and sentences in federal court....

The Democrats' clearest differences involve sentencing for drug crimes, including the disparity between terms for crack cocaine offenses, which affect mostly black prisoners, and terms for powder cocaine, which affect mostly whites.  When the Sentencing Commission voted in November to lower sentencing guidelines for crack-related crimes, and bring them closer to sentences for powder cocaine, Obama favored applying the new terms retroactively to current prisoners, while Clinton opposed it, saying the change should affect only future cases.  The commission voted for retroactivity in December, allowing 19,500 federal inmates to ask judges for sentence reductions, about two years in most cases.

Clinton has also questioned Obama's proposal to scrap some of the more than 170 federal mandatory-minimum laws, which require judges to impose specified prison sentences, most commonly for drug crimes.  Noting that the laws mostly affect minorities and have had many critics, including the late Supreme Court Chief Justice William Rehnquist, Obama has attacked them as unfair to defendants and unduly restrictive on judges, but he has stopped short of calling for a wholesale repeal.  Instead, he promises to review all mandatory minimums and try to eliminate those he considers too harsh.

UPDATE:  Over at TalkLeft, Jeralyn has this long post providing more perspective on these issues, and she concludes with this assertion:

To say Obama is more progressive on crime issues or that he takes the defense line while Hillary toes the prosecution line, is not accurate. Neither one is particularly progressive or defense oriented.  Their minor differences are just that, minor.

Rather than debate labels here, I would rather concentrate on records.  Throughout his Presidency, Bill Clinton showed to the right on crime to score political points (and this SFC article suggests Hillary Clinton played a key role in these moves). I was so disappointed by Hillary Clinton's recent stance on crack retroactivity because it revealed that she, too, was very ready and seemingly quite willing to sell-out principles (and criminal defendants) as part of a misguided effort to score political points.  As the San Francisco Chronicle spotlights, it likely made a lot of political sense in 1992 for Bill Clinton to try to move the democrats to the right on crime issues.  But, 16 years later, the modern dynamics of crime and politics have changed dramatically, and I think the country now desperately needs leaders who worry more about modern justice realities than about dated political rhetoric.

Super Tuesday and sentencing "change"

Tomorrow, so-called Super Tuesday, will likely be the biggest single day in the 2008 presidential campaign until November.  Thus, I thought it appropriate to spotlight a few of my favorite posts from my Campaign 2008 archive as pundits everywhere gear up for the big day:

• How the media can do better: ask the candidates tough crime and punishment questions