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December 12, 2007

Is Senator Clinton to the right of Justice Scalia on sentencing issues?

As detailed here and here and here, I have been predicting throughout 2007 that crime and punishment issues would find a way into the Obama/Clinton battle for the Democratic presidential nomination.  And this new post at The Atlantic.com suggests that the Clinton campaign thinks its "tough-on-crime" approach will help defeat Obama, although these excerpts highlight some nuanced realities: 

Campaign aides have said that Obama's support for retroactivity in drug sentences would kill him with tough-on-crime white independents.  But the Supreme Court, in a 7 to 2 decision yesterday that included Antonin Scalia, endorsed the view that judges could ignore sentencing guidelines when handing down prison terms for distributing crack versus powder cocaine, and a Bush administration panel today voted seven to nothing to impose retroactivity....

The approach carries risk.  Polls show that Clinton is judged to be running the most negative campaign of all the Democrats, and if voters come to perceive her campaign as being in attack mode, her own favorability ratings could suffer.

As I have stressed in prior posts, I think Senator Clinton's approach to retroactivity is not just "negative," but extraordinary harmful to having a sober and balanced national conversation about crime and sentencing. 

To their great credit, Justice Scalia and Chief Justice Roberts (and also Justices Stevens, Kennedy, Souter, Breyer and even Alito) have all contributed recently to help create a more balanced dialogue on these important issues.  I ultimately trust other so-called "tough-on-crime white independents" to understand that it is not always good to give prosecutors extreme power in the criminal justice system.  Indeed, in the wake of the Scooter Libby prosecution, the Border Agents severe sentencing and the Duke lacrosse scandal, I am hopeful that all voters are coming to understand that everyone, not just poor minorities, can suffer from inadequate checks and balances in the operation of criminal justice systems.

Some related prior posts:

December 12, 2007 at 11:29 AM | Permalink


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I dislike Hillary and wouldn't even vote for her in the general election because of her shameful conduct with respect to the war in Iraq.

That being said, this is unfair to the Senator. Scalia was interpreting the Sentencing Reform Act when he voted in favor of giving district courts discretion on the crack issue. He was not stating his legislative preference.

Posted by: Confused | Dec 12, 2007 11:33:11 AM

Confused, Nice to see that so many people will be supporting Rudy.

Posted by: S.cotus | Dec 12, 2007 11:38:46 AM

The assumption that only white people favor "tough on crime" policies smacks of racial stereotyping. The death penalty is a decent proxy for "tough on crime" attitudes, and it is favored by "nonwhite" people 55 to 41, according to the October 2007 Gallup poll.

What the poor, largely racial minority, areas suffer from the most is crime.

Posted by: Kent Scheidegger | Dec 12, 2007 11:51:17 AM

The more Hillary pillorying the better. This woman is even more of a calculating political phony than her husband, and this issue presents a good opportunity to shed some light on that.

Scott Taylor

Posted by: | Dec 12, 2007 12:04:57 PM

Confused: You are right that apples and oranges are being compared in the post I link. But, in a political world where symbolism and themes often matter more than nuance, Clinton's views and the votes of Republian appointees are telling.

Kent, I generally do not think the death penalty is, in fact, a good proxy for "tough on crime" attitudes because it applies to so few crimes. Voters may believe this is a good proxy, which perhaps is why Huckabee was so eager to avoid a serious answer to what Jesus might do with regard to the death penalty.

Do you think views on the Libby case serve as a good proxy for "tough on crime" attitudes? How about views on drunk driving offenses or corporate crime?

Ultimately, because there are so many different types of crime, I do not think anyone is (or should be) consistently tough or consistently soft. That, in turn, is why I am not sure there are any great proxies in this arena.

Posted by: Doug B. | Dec 12, 2007 12:11:44 PM

Scott, You are incredibly naive if you think that people involved in politics are generally not calculating political phonies. I mean, come on, do you really think that any other politician is not “calculating.” “Calculating” is what politicians (and their consultants) do. I realize that you might not want Hillary to be president. But, as a lawyer you should be above all the politics that the non-lawyers engage in and engage democracy on a more effective and mature level. Grow up.

Kent, There is nothing inherently wrong with racial stereotyping. It is only when it is used as a proxy for proximate cause or perhaps a means to deny people employment or loans that it raises legal issues. You are incredibly naive (and just wrong) if you think that politicians don’t court the “Latino vote” or the “Black vote.”

Professor, Hillary the candidate is probably a different person than Hillary the lawyer, or Hillary the policy-maker. Personally, I don’t know why she wants to be a politician. But since she HAS made that choice she will pander to the lowest base interests of the lowest of all species: the non-lawyers. It is all part of the game. Even though I don’t plan on voting (since no relative of mine is running), I don’t fault a politician for playing to the animal instincts of the voters. So, I would take your analysis one step further: statements made during a campaign are not a proxy for a policy positions.

Posted by: S.cotus | Dec 12, 2007 12:18:58 PM


As a non-lawyer, I'll take some solace in my naivete. As a former (minor local) elective office holder, however, I'll stand by a further estimation than even in the purely political arena the Clintons are relatively far up on the calculating scale. (However, my slide rule slid right off the scale - and into the trash can - the last time I applied it to Mitt "perfect death penalty" Romney.)


Posted by: | Dec 12, 2007 1:09:31 PM

Prof Berman - Do you think that the border agents' "severe" sentences were unwarranted or do you just bring them up because they are getting attention? I haven't followed the story very closely, but around 10 years for "causing serious bodily injury, assault with a deadly weapon, discharge of a firearm in relation to a crime of violence, and a civil rights violation" seems reasonable to me. (The quoted charges of conviction are from Wikipedia, which I think is sufficient research for an anonymous blog comment.)

Posted by: Buried story | Dec 12, 2007 1:14:38 PM

Please read Derrick Z. Jackson's Boston Globe column on how Obama wavers on drug sentencing reform, particularly crack powder.

He said that if he were to become president, he would support a commission to issue a report "that allows me to say that based on the expert evidence, this is not working and it's unfair and unjust. Then I would move legislation forward."

Of course, we've had those reports for years. Then he said he wasn't sure he wanted to spend the "political capital" changing the laws.

As to Hillary, at the Howard University debate, transcript here , she said:

We do have to go after racial profiling. I've supported legislation to try to tackle that....We have to go after mandatory minimums. You know, mandatory sentences for certain violent crimes may be appropriate, but it has been too widely used. And it is using now a discriminatory impact...We need diversion, like drug courts. Non-violent offenders should not be serving hard time in our prisons. They need to be diverted from our prison system.

Posted by: TalkLeft | Dec 12, 2007 1:22:54 PM

Scott, Out of sick curiousity, which politician isn't calculating?

Posted by: S.cotus | Dec 12, 2007 1:31:18 PM

"You are incredibly naive (and just wrong) if you think that politicians don’t court the 'Latino vote' or the 'Black vote.'"

No rational person could infer from my comment that I think that.

Posted by: Kent Scheidegger | Dec 12, 2007 1:39:12 PM

But, in a political world where symbolism and themes often matter more than nuance, Clinton's views and the votes of Republian appointees are telling.

But Scalia is not providing political leadership on sentencing issues. He is interpreting documents, namely, the statute and the Constitution. On top of that, I don't think he even particularly likes the outcome in Kimbrough. He accepts it as an unavoidable consequence of the Booker remedial opinion, from which he dissented. He still believes that decision was misguided (and said so in his Rita concurrence), but he accepts that the Court shouldn't overrule itself on a matter of statutory construction, because Congress itself could overrule the Court if it wanted to.

Posted by: Marc Shepherd | Dec 12, 2007 1:48:41 PM

As a Black man, I am sickened by the "free pass" that Senator and President Clinton have received on the crack/powder issue. President Clinton could have ended the disparity in the guidelines back in 1995 by vetoing Congress bill to refute the Sentencing Commission's changes, thus rendering the Commission's actions yesterday unneeded. But he chose not to. Senator Clinton's "right-wing" response to the issue is just as Galling (no pun intended...ok, a little). I am not a one issue voter, but this has given me pause about her. Oh, and I am pro-death penalty, but only when applied CORRECTLY which it never is!

Posted by: | Dec 12, 2007 1:50:03 PM

1:50:03 PM, Do you really think that Clinton/Obama/whoever are going to campaign on ANYTHING that could be interpreted as letting "criminals" out early?

Posted by: S.cotus | Dec 12, 2007 2:07:15 PM

I just hope one of the early released crack people don't get out and murder someone.

The LA Times reported today that a gang member was involved in a drive-by murder though wearing a GPS device!

My concern is that one of these fools will give federalist all the ammunition he needs to say, "I told you so." Their friends would do well to lock them up in a room somewhere to keep them out of trouble.

Posted by: George | Dec 12, 2007 3:56:56 PM

Federalist will always find something in the news that will verify his world view of "lock those people up." There is nothing that the USSC can or cannot do that will change this.

Posted by: S.cotus | Dec 12, 2007 3:59:31 PM

A couple quick replies:

1. TO Buried story: I think the Border Agent sentences are MUCH to severe, as did their federal prosecutor who offered a plea deal for ONE YEAR IMPRISONMENT for all their crimes. But the agents exercised their rights to argue self defense (and lost) at trial, and that why they got such long sentences.

2. TalkLeft: Mince quotes all you want, but Hillary says (1) she supports some mandatory minimums, and (2) she opposed retroactvity. AND, now her campaign seems to be saying that they are going to go after Obama for supporting retroactivity. The idea that Senator Clinton hopes to secure the DEMOCRATIC nomination by portraying fellow Deomcrats as soft on crime all but ensures that the Democratic Party will struggle to engender a better debate on these issues.

Posted by: Doug B. | Dec 12, 2007 4:21:09 PM

Doug, do you continue to think the border control agents' sentences are much too severe after they expended our judicial resources in going to trial? Also, everything I've read about the case suggests that they fully, fully deserved their conviction and sentence. Only in the loony world of right wing media have I heard tales of their hard luck -- until your blog. Which I don't generally lump in w/ Rush, Hannity & World Net Daily. Where did you read about the case in a way that made you see the agents in a sympathetic light?

Posted by: Sentencing Observer | Dec 12, 2007 5:02:39 PM

Doug, here is where I got my facts:

At that point, according to trial testimony, Compean tried to hit Aldrete-Davila with the butt of his shotgun, missed, and fell into the 11-foot-deep ditch. Aldrete-Davila took off running. Compean climbed out of the ditch, shot at him 14 times and missed. Ramos, who had watched Compean fall, then fired once. The bullet entered Aldrete-Davila's left buttock, severed his urethra and came to rest in his right thigh. He fell down, but got back up, escaping across the Rio Grande into Mexico. The two agents then covered up the incident. Compean hid some of the shell casings and asked a third agent returning to the scene later that day to dispose of the rest. Neither Ramos nor Compean ever reported the shooting. They were arrested a month later, and then only because America's border with Mexico is like a very long and skinny small town. Aldrete-Davila's mother is friends with the mother-in-law of Rene Sanchez, a Border Patrol agent in Arizona. After hearing about the incident from his mother-in-law, Sanchez sent a report to the Department of Homeland Security in Washington, which then dispatched a special agent to Texas to investigate.

At trial in the federal courthouse in El Paso, Border Patrol agents from the Fabens station took the stand to testify against Ramos and Compean. Fellow agents, including one who had observed the shooting, contradicted Compean's story about where he was and how he was positioned when he fired his weapon. The agent who had helped Compean hide shell casings admitted it under oath. Prosecutors showed that Compean had repeatedly changed his story about the shooting and that it didn't match Ramos' account. They were also able to show that although Compean had discussed the shooting with other agents after it happened, it wasn't until his arrest that he began claiming that Aldrete-Davila had had a gun.

Can you tell me why they don't deserve serious prison time?

Posted by: Sentencing Observer | Dec 12, 2007 6:05:48 PM

See also here:

Posted by: Sentencing Observer | Dec 12, 2007 6:09:56 PM

Sentencing Observer: I am sure the facts are debatable and it seems clear that the agents did wrong (as the jury concluded). But I will always return to the notion that the AUSA who prosecuted the case thought that a 1-year sentence was just if the defendants just pleaded guilty. I'm fine with a reasonable trial penalty (say 50% or even 100% for contesting guilt and losing), but an extra decade (amounting to an extra 1000%) for contesting guilt hardly reflects respect for our commitment to trial by jury.

In addition, after the Senate held an investigation and hearing, Senator Dianne Feinstein joined with John Kyl to call for a commutation. I do not think Feinstein tends to take her cues from Rush, Hannity & World Net Daily.

In most of the western world, any sentence over a decade is usually considered extreme even for extremely serious crimes. Here the cover-up seems to bother folks more than the crimes themselves.

Posted by: Doug B. | Dec 12, 2007 8:14:11 PM

Saying that the AUSA thought a 1-year term is "just" probably isn't accurate -- it was probably an estimation of the difficulty of getting a jury to convict law enforcement agents of a crime. The AUSA probably felt he/she had to offer a suitably low offer to get the agents to accept, given the weak bargaining position the AUSA was in (at least vis-a-vis bargaining w/ your typical FiP or drug defendant).

In rejecting that plea, the agents behaved as arrogantly & as impervious to right & wrong as they did when they shot repeatedly at an unarmed man who tried to surrender.. Their *colleagues* testified against them. They abused the considerable authority fo their position, and then covered up their misdeeds. They *deserve* to go away for a long time for what was essentially an attempted murder.

And Feinstein -- she is *terrible* on law & order crime issues. Feinstein does basically take her cues on crime issues from the far right. She seems to have this impression that San Diego is her base, and she needs to constantly prove to the rabid wingnuts down there that she's really, really, really tough on crime (and on hippies burning the flag, or trying to the sue the telecom companies who blatantly violated the FISA law w/ the Gov't). She's not a liberal at all, and that she finds merit here makes me even more suspicious.

Posted by: Sentencing Observer | Dec 13, 2007 8:57:48 AM

"Indeed, in the wake of the Scooter Libby prosecution, the Border Agents severe sentencing and the Duke lacrosse scandal"

I love how you throw in the local prosecution of Duke players. Give me a break!

Posted by: lawdevil | Dec 13, 2007 11:08:00 AM

What's wrong w/ mentioning the Duke case? It goes well w/ his point that the criminal justice system not infrequently suffers from inadequate checks & balances.

Posted by: Sentencing Observer | Dec 13, 2007 11:51:50 AM

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