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January 5, 2008

Clinton campaign assails Obama for advocating against federal mandatory minimums

As David Zlotnick and FAMM have effectively documented here and here, many well-known conservatives and Republican-appointed judges have spoken out forcefully against federal mandatory minimum sentences.  Policy criticisms of mandatory minimum sentences have come from, inter alia, the late Chief Justice Rehnquist, current Seventh Circuit Chief Judge Frank Easterbrook, and former Utah District Judge Paul Cassell, none of whom will ever be accused of having been too liberal for the American public.

However, as now revealed by this ABC News piece discussing Hillary Clinton's efforts to bounce back from her defeat in Iowa, the Clinton campaign team is suggesting that Barack Obama's opposition to federal mandatory minimum sentences makes him too liberal for the Democratic Party's nomination:

Sen. Hillary Clinton went on the counterattack today, one day after a stinging defeat in the Iowa caucuses to Illinois Sen. Barack Obama.  She said New Hampshire voters need to take a hard look at Obama, suggesting that they shouldn't just buy into his message of "hope" without analyzing his policies....

While the senator was vague, her campaign pointed out to ABC News examples of Obama's liberal positions, including his 2004 statement to abolish mandatory minimum sentences for federal crimes.

This story further confirms my concern that Senator Clinton is not just willing, but apparently quite eager, to use the old "soft-on-crime" scare strategy in an effort to swing voters her way.  Such a strategy is extraordinarily disappointing on the merits and telling coming from Senator Clinton now. Moreover, I cannot help but suggest that there is a sniff of racism in the Clinton camp's now repeated efforts to adopt a classic "Willie Horton" tactic in the hope of scaring (mostly white) voters away from a (non-white) candidate because of fear of (mostly minority) offenders subject to extreme prison terms under the old crack guidelines and federal mandatory minimums.

This latest Clintonian move of assailing Obama for once calling for abolition of mandatory minimums provides strong evidence that her campaign has now, in classic pop culture terms, "jumped the shark."

Some recent related posts:

January 5, 2008 at 07:43 AM | Permalink


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I've always said it. Hillary Clinton is a Republican in disguise.

Posted by: EJ | Jan 5, 2008 11:24:50 AM

The Clinton scare tactics didn't work in Iowa and they certainly won't work with the savy crowd in New Hampshire. The fact that Clinton is resorting to this scurillous tactic shows how completely out of touch she and her inner circle are with the national mood.

Posted by: mickey d. | Jan 5, 2008 12:34:50 PM

Folks, it would be nice to have a nice panel discussion on sentencing – moderated by our host – where the major candidates from both parties would answer difficult (and technical) questions about sentencing. In fact, I would even go to Ohio for such an event.

But that isn’t the case.

Hill, Obama, Huck, Rudy, Mitt, etc. are saying things for their visceral impact. In fact, I don’t see too much difference between a political campaign and hard-core pr0n. Both are devoid of social and political value, but enjoy some kind of 1st amendment protection.

The sad part about this is that there are intelligent alternative to mandatory minimums out there (i.e. “super departures” for extenuating circumstances determined by a three-judge panel, as is/was the case in Alaska). But, none of this is really going to enter into the discussion.

Whoever does get elected, however, will probably have a much more nuanced view of things. But such nuance has no place in these electoral discussions.

Posted by: S.cotus | Jan 5, 2008 1:05:45 PM

I know where you are coming from S.cotus. As a political scientist, I can talk Michigan-model, Downsian model and Sociological model of vote choice with you all day. But, the fact of the matter is that voters are voting less and less on the basis of party identification and more and more on the basis of individuals candidates. As a result, what candidates say, how they present themselves and how they react matters more and more (tip of the hat to television). I don't think anyone here is saying criminal sentencing is the end-all campaign issue, or even in the top three. Nor do I think there a need to say it. It is a given. The trick is to understand, and spot, what relevance it does have. And I have yet to see any far-fetched weighing and balancing going on here.

That being said, Obama had taken the time to formally address the sentencing issue and Clinton will attempt to make something of it. Obama mentions Libby regularly in speeches and every Republican candidate has been asked about him as well. The Romney/Huckabee pardon discussion received a lot of media attention and their handlers seemed to think it was worth their effort. Put all of that together and I don't have any problem whatsoever predicting Libby will be discussed in the presidential debates and, along the way, there is a better than average chance that sentencing will be brought into the discussion.

So, where is the harm in thinking about / discussing all of that in advance?

Posted by: P.S. Ruckman, Jr. | Jan 5, 2008 1:17:13 PM

I think (and know) alot of African Americans will vote for Obama simply in hopes that he will help "make things right" for them(us). If other White politicans can help the rich stay rich, i.e, then maybe an African American president will do the same...

Posted by: | Jan 5, 2008 1:19:32 PM

I thought the Democrat party's official platform was against mandatory minimums. Maybe they don't even have official platforms anymore.

Posted by: bruce | Jan 5, 2008 2:25:25 PM

Politicians can lie, but they can’t hide

A blog post on Rickert v. Washington:

“The notion that the government, rather than the people, may be the final arbiter fo truth in political debate is fundamentally at odds with the First Amendment,” Justice James M. Johnson wrote for four the justices in the majority. A dissenting justice, Barbara A. Madsen, wrote that “the majority’s decision is an invitation to lie with impunity.”

Justice Madsen added that the decision would help turn “political campaigns into contests of the best stratagems of lies and deceit, to the end that honest discourse and honest candidates are lost in the maelstrom.”

Posted by: George | Jan 5, 2008 2:51:26 PM

It is a trivial matter to get a legislature to increase the length of a sentence or to restrict eligibility for parole because that is "tough on crime". Such measures pass with nearly unanimous votes and the governor promptly signs the bill. It takes an enormous amount of unrelenting pressure to get the legislature to reduce the length of a sentence or to remove or ameliorate restrictions on parole or probation and unless there is similar pressure on the governor he/she is likely to veto the bill.

I am sorry but I don't see that kind of pressure.

Posted by: John Neff | Jan 5, 2008 2:55:05 PM

Have Rehnquist, Easterbrook, et al., criticized mandatory minimums in principle, or have they just said that some of them are excessive?

Some mandatory minimum sentences for some crimes are unduly harsh.... I think most people would agree with that, particularly in the case of minor nonviolent drug offenses. Furthermore, some mandatory minimum sentences might be appropriate 95% of the time, but produce absurd results in special case... I think that's also probably uncontroversial.

But if you want to get rid of all mandatory minimums, you're basically saying that no matter what crime a person is convicted of, the court should always have the option of setting him entirely free with no prison. That's not an unreasonable view to have, but I think it's ridiculous to label someone a racist for opposing that view. Barack Obama seems to shoot himself in the foot by making absolute statements about things he hasn't given much thought to (e.g. meeting with Iran), and his opponents have noticed and occasionally take advantage. Although he's a lawprof and has probably given a bit more thought to this one, it seems like business as usual with the primary campaign, as far as I can tell.

Hillary Clinton's views on criminal law are probably more in line with the Republicans than the Democrats... this certainly makes for some interesting debates as she seeks the Democratic nomination for the presidency, but some of the criticism from this blog directed at her strikes me as unreasonable.

Posted by: | Jan 5, 2008 3:05:32 PM

Indeterminate sentences are not an outrageous concept. Prior to 1987 they were the norm. The history of mandatory minimums is short and not sweet.

Of course the concept of mandatory minimums was ideological and sold on the basis of fairness and equality. Alan Dershowitz was a major player in the marketing of this legal reform. Democrats embraced it because they wanted equality, this usually does include power and control.

Many reforms are like the dog that comes back to bite.

Beth Curtis

Posted by: beth curtis | Jan 5, 2008 5:27:00 PM

My recollection was that the problem they were trying to solve by the introduction of mandatory minimum (MM) sentences was that there was that sentence severity covered too wide a range and that in too many cases the punishment did not fit the crime. A related problem was the victim had no idea what the actual length of confinement would be (a person sentenced to five years could be paroled in 9 months for example). It appears to me that after the introduction of MM sentences we still have these problems and the only real differences are the average length of confinement and the good time credit have both increased.

When MM sentences were introduced the number entering prison was larger than the number leaving prison and the prison population grew until the a new equilibrium was reached and the MM admission and MM release rates became equal. In other words the introduction of MMs cause a growth spurt in prison population that eventually ended. The number of new court commitments has been decreasing so the main cause of continued prison population growth is the increase in revocations of probation, parole and work release.

If the policies are changed to reduce the length of confinement for MM sentences the release rate will become larger than the admission rate and prison population growth will either slow, stop or reverse.
I think taking steps that will reduce the revocation rates will reduce prison populations the most.

I have talked to many people who are convinced that prisons are full of first time offenders serving mandatory minimum sentences for the possession of small amounts of marijuana. I ask them how many people they know who posses small amounts of marijuana and what fraction are in prison serving a MM sentence.

Posted by: John Neff | Jan 5, 2008 11:26:30 PM

I now start the federal parole bill movement. The first step on the drug war. La la la!!!! And Obama will have to pass this to satisfy his base! Ta da!!!!!

Posted by: Chris Levens | Jun 8, 2008 4:13:09 AM

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