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March 3, 2008

"Are Liberals Responsible For Mass Incarceration?"

The title of my post here comes from this intriguing post by SHG over at the great blog Simple Justice: A New York Criminal Defense Blog.  At that blog, SHG indicates that he "look(s) forward to lively and thoughtful discussion," and we engaged in just such a discussion when SHG took issue with my support here for a Kentucky forfeiture bill. 

SHG kindly let me have the last word in our debate over asset forfeiture as an alternative punishment, in part because he rightly realized that I "took this discussion to a much deeper place."  That, in turn, prompted SHG's long post with the title above.  The full post should be read for context, but here's how it concludes:

What I found so jarring by Doug's position is that we share a concern for the over-incarceration, over-criminalization of American society.  We similarly share a concern about the disparate impact of criminal law on minorities.  There is much we agree on.  Yet, it never occurred to me that beneath these areas of agreement, Doug harbored such a smoldering hatred of liberals.  Indeed, but for a few odd choices, one might well have concluded that Doug was quite the liberal himself.  And everybody is entitled to make some unexpected choices from time to time.

But Doug has come out clearly as a liberal-blaming conservative, and challenges us libs with being small-minded, unimaginative, brainwashed and beaten.  I'm not buying, and I'm frankly shocked by the depth of Doug's hatred of liberals and the nature and scope of his attack.

Just because we agree on the problem does not mean that we have to accept any potential "solution" that comes along.  By disagreeing with Doug's acceptance of asset forfeiture as a Utopian ideal, I am not prepared to accept being pigeonholed.  Mass incarceration is a very real problem.  Asset forfeiture is a very bad solution.  We need to solve the problem, and Doug is right that we all need to open our minds to alternatives that fall outside the realm of the usual answers....

But in our zeal to find alternatives, seizing upon solutions that are worse than the problem is not progress.  Legislatures tend to do that a lot, coming up with a brand new idea that ultimately proves to exacerbate the problem rather than fix it....

Doug has, in effect, accused me of liberal myopia because I do not accept his view that any alternative to mass incarceration is a good one.  Since Doug's views don't reflect mainstream conservatism, it would be unfair to make any accusations against conservatives based upon Doug's comments.  But I have one to levy directly at my accuser:  Professor Douglas Berman, you are just a liberal in sheep's clothing who is grasping at straws to find a cure to the societal nightmare of over-incarceration.  Stop fighting it and come over to the side of truth and justice.  We will forgive you this one mistake. 

Because he has addressed me directly, I want to clarify a few points:

1.  I do not have a "smoldering hatred of liberals," but I do have a smoldering concern that Americans who vocally and aggressively oppose the death penalty, and shaming punishments, and property punishments, and other non-incarceration responses to crime fail to realize (while being eager to deny) that they bear at least some partial responsibility for contributing to the various social and political realities that have produced modern mass incarceration in the United States.

2.  I am genuinely worry that most Americans (and not just "libs" as SGH describes himself) have become "small-minded, unimaginative, brainwashed and beaten" by a Kafkaesque US criminal justice system.  I am not sure how else I can otherwise explain, e.g., why federal defendants are still regularly punished for acquitted conduct even four years after Blakely or why New Jersey gets hailed after eliminating a (dormant) death penalty for murderers while nobody pays attention to its extreme and racially skewed drug offense imprisonment realities.

3.  I am proud to say that I am neither a "liberal in sheep's clothing" nor a sheep in liberal's clothing.  Especially since working on this blog, I have concluded that political labels (as well as some clothing) tend to restrict critical thinking rather than inspire reasoned dialogue.  And once I stopped worried about labels, I discovered that many so-called "conservatives" advocate ideas that have great sentencing reform potential — ideas ranging from support for faith-based prisons and reentry programs to a stated concern for doing away with any "tired philosophy [like the war on drugs] that trusts in government more than people." 

4.  I readily admit that I am "grasping at straws to find a cure to the societal nightmare of over-incarceration."  I do so because so many others who focus on criminal justice systems — and especially those who proudly assert that they are on "the side of truth and justice" — have for decades been unable (or unwilling) to pursue effectively cures for over-incarceration (perhaps because they are so darn busy trying to end capital punishment or trying to prevent crime victims from having rights or trying to ensure accused terrorists at GTMO have habeas rights or trying to prevent the recognition of an individual right to keep arms).

In short, SHG, I am not sure — nor do I really care about — which "side" I am on in these debates.  But I am sure that, as a believer in America's founding principles of liberty and freedom, I am deeply ashamed to be a citizen in the only country in world history that locks more than 1% of its adult population in small cages with iron bars.  I am also ashamed that very few on any "side" of the political fence are complaining about the failure of our nation's leaders to address these critical issues.

March 3, 2008 at 12:54 AM | Permalink


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» Neither Liberal Nor Conservative: Just Appalled on General Principle from Drug Law Blog
Prof. Berman of the Sentencing Law and Policy Blog has an unusually personal post up right now defending himself against the somewhat bizarre charge that he has smoldering hatred of liberals. His last words are striking: I am not sure [Read More]

Tracked on Mar 3, 2008 8:51:27 PM

» Why Definitions Matter: Politics versus Ideology from Simple Justice
While I really hate to resurrect old debates, and I really hate to see them come back on some other blawg where a straw man argument is raised that it's intended to make a point that can't be made against the real argument, some discussions keep bring... [Read More]

Tracked on Mar 4, 2008 9:07:18 AM


Other than liberals (at least those who are not crime victims) being against the death penalty for the most part, there really are no differences between liberals and conservatives when it comes to crime. In modern america, it is entirely bipartisan to desire to lock up anyone who is a "criminal". It is bipartisan to be "tough on crime." It is bipartisan that it's better than an innocent person be sent to prison than a guilty person be acquitted and set free (after all, the innocent person in prison doesn't pose a danger to our precious children). It's bipartisan that we should continue the idiotic war on drugs, though liberals have a little more tolernace for marijuana (but none of the other drugs) than conservatives. It's bipartisan that police deserve respect and the benefit of the doubt in court. It's bipartisan that once people are thrown in prison, nobody cares about their basic human or civil rights. It's bipartisan that prison rape is a useful deterrent to crime. It's bipartisan that the solution to any social problem (real or imagined) is to pass a law criminalizing something. It's bipartisan that as long as crime exists, longer sentences are needed. It's bipartisan that crime victims deserve special protections, rewards, and honors, and should have a pleasant time testifying in court, and that their opinions should matter at sentencing. It's bipartisan that criminal defendants are presumed to be guilty - if they're in court, they musta done something. Its' bipartisan that one entire year locked in a small cage like an animal is a really short time. It's bipartisan that the state has an "interest" in the finality of convictions (regardless of innocence or constitutional violations). It's bipartisan that criminals appealling their convictions and filing writs of habeas corpus are annoying and should be limited as much as possible. It's bipartisan that the rules of evidence and procedure should favor the state at criminal trials. It's bipartisan that criminal defendants should be limited in the defenses they may legally use at trial. It's bipartisan that the Constitution be defenestrated when it comes to "protecting the children." Children trump human rights... definitely bipartisan

Screw everybody. Liberal and conservative mean nothing when it comes to criminal law.

Posted by: bruce | Mar 3, 2008 4:13:34 AM

You are right Bruce, you forgot to mention that its bipartisan to claim to protect children, while turning around and passing laws that allow children to be tried as adults. It's bipartisan to maintain laws that prosecute children for sex crimes, that were supposed to be used to protect them.

Posted by: EJ | Mar 3, 2008 9:19:34 AM

Many of the "Tough on Crime" bills pass with near unanimous majorities and are promptly signed by the governor in Iowa and I have no reason to think it is much different in other states. OTOH the last time there was a DP debate in the Iowa legislature the leadership of both parties had no control over how their party members voted. Party affiliation does not appear to mean much on a DP vote. I suspect that the reason the DP is not a legislative issue in Iowa is that they party leaders cannot predict the outcome.

On the racial disparity issue it is not a good idea to try and jam all members of a race into a single pigeonhole. The census uses African, Amerind, Asian, European and Pac-Island as races and only two ethnicities Hispanic/Non-Hispanic a very crude classification system in my opinion and each one of those races/ethnicity can be subdivided in a number of different ways. Ethnicity is so ill defined so I wonder if it was a good idea to include it.

Blacks in the US are made up of many diverse groups that are changing very rapidly but it appears to me that the progress for all low income racial/ethnic groups has slowed or stopped in the past six years. Replacing a single population model for Blacks (all bad guys) with a two population model (mostly good with some bad guys) is a step in the right direction but there needs to be many more steps.

Posted by: John Neff | Mar 3, 2008 11:06:35 AM

Yeah, it's bipartisan to go out of our way to protect the children, except for the bad ones. Then we throw them away just like we do with adults. The very concept of "trying a child as an adult" is oxymoronic (and just plain old moronic). That it's left to the discretion of the prosecutor is even worse. Children should be tried as children, regardless of their crime. It's also hypocritical to say some children are mature enough to be tried as adults, but no children are mature enough to have sex, not even the streetwise teenage girls who look 22, have fake id's, say they're 20, and sexually seduce older men.

But what's more bipartisan than hypocrisy?

Posted by: bruce | Mar 3, 2008 11:06:56 AM

For a fascinating and insightful discussion of liberalism's evolution into neoconservatisim today, see Christoper P. Wison's Cop Knowledge: Police Power and Cultural Narrative in Twentieth-Century America.

"Whether they appear in mystery novels or headline news stories, on prime-time TV or the silver screen, few figures have maintained such an extraordinary hold on the American cultural imagination as modern police officers. Why are we so fascinated with the police and their power? What relation do these pervasive media representations bear to the actual history of modern policing? Christopher P. Wilson explores these questions by examining narratives of police power in crime news, popular fiction, and film, showing how they both reflect and influence the real strategies of law enforcement on the beat, in the squad room, and in urban politics. He takes us from Theodore Roosevelt's year of reform with the 1890s NYPD to the rise of "community policing," from the classic "police procedural" film The Naked City to the bestselling novels of LAPD veteran Joseph Wambaugh. Wilson concludes by demonstrating the ways in which popular storytelling about police power has been intimately tied to the course of modern liberalism, and to the rising tide of neoconservatism today."

"A thorough, brilliant blend that crosses disciplines."—Choice"

[S]ophisticated, highly theoretical and ambitious. . . . Connects the history of policing to cultural representations of crime, criminals and cops."—Times Literary Supplement"

[A] deeply satisfying approach to the crime narrative. . . . [Wilson] focuses, ultimately, on the role of police power in cultural storytelling."—American Quarterly

Posted by: George | Mar 3, 2008 2:27:36 PM

Its a mistake to blame the Democratic Party's failure to enact meaningful criminal justice reform on "liberals" because liberal do not control the Democratic Party on that issue - instead, as Bruce demonstrated so effectively, there is bipartisan agreement to be "tough on crime" and support what can be aptly termed the "Prison-Industrial Complex" (although one should probably include prison guard unions in that equation).

Remember that unlike conservatives and the Republican Party, liberals tend to do not feel that the Democrats really represent their views, liberals just see Democrats as the lesser of two evils.

Posted by: Zack | Mar 3, 2008 3:44:45 PM

This is quite a response considering how you thought I had a silly overreaction. But it wasn't really very long, considering the length of most of my posts.

I'm glad that we can now agree to stop using labels.

Posted by: shg | Mar 3, 2008 5:46:42 PM

Ya know, I just feel compelled to say that other than his seriously erroneous and misguided support for faith-based prisons (the merits of which I'd be more than happy to debate with anyone), I've never had the opinion from reading this blog that Professor Berman is any sort of conservative. Since all he talks about is crime (and mostly just the sentencing/punishment aspect thereof), which I think I've adequately shown is not a partisan issue, I don't see how anyone could determine from reading this blog whether he's a conservative or liberal, let alone extreme in either direction. If there are sources outside of this blog (and there may be) which indicate his partisanship, I'm unaware of them.

Indeed, Zack, the only difference between Republicans and Democrats is that the dems are a little more willing to support paying for government-funded social programs to "help people in need" (which sounds nice but is not always proper nor a good idea). That's it. Other than that, same exact party. They collude to maintain the appearance of differentiation between the two, as it's in their interest to do so.

Posted by: bruce | Mar 3, 2008 6:32:31 PM

For anyone else interested in crime and popular culture, which is, after all, likely more influential than the straightforward political debate, I found a goldmine.

Journal of Criminal Justice and Popular Culture

Of particular interest might be Crime Shows and Sensational Interests: An Exploratory Examination of Students in Criminal Justice Related Majors by Monica L. P. Robbers. (pdf)

Posted by: George | Mar 3, 2008 10:05:39 PM

Some very good insights so far today. I am a libertarian who votes democratic. I loath the welfare system and believe that the incaraceration rate is our worst problem in the United States. I agree with Bruce above who says that the crime positions in this country appear to be bi-partisan. I think perhaps the correct word is bi-polar. This sentencing blog has conveyed some information about incarceration rates and percentages that I was unaware of. Good work Doug.

Posted by: mpb | Mar 4, 2008 3:03:17 PM

Recent ideas for reform include asset forfeiture for sex crimes. I happen to think that this would be a solution worse than the problem it seeks to solve, as with registries. Money isn't a motivating factor in this type of crime, in contrast to the drug trade.

But whether I am "liberal" or "conservative" on this point is an intriguing question.

Crime is obviously not a good thing and over-incarceration (and over punishment) is even worse than the alternative. We have definitely forgotten the old saw that it is "better to let ten guilty go free than to convict one innocent man".

So in the spirit of conservation, liberation, AND bipartisanship let's reach across the aisle and return to the mindset of the old saw. All it takes is budget cutting. Cut the crime fighting budget. Period. It's just that simple. I will offer that this is definitely a fiscally conservative position in addition to being socially conservative.

Even so, I think of myself as a "liberal" these days because I'm more libertarian than not, and I agree with redistributing wealth up to a point and disagree with a system that lets the uber rich abuse the rest of us just because they can. I say this tongue in cheek but have observed that the recent period of "Republican" rule has allowed exactly this type of abuse to occur, almost unfettered. It would have been unfettered if the rich had their way.

Examples in point: gasoline prices, home prices (mortgage abuse). These two elements of the economy have almost single handedly produced the current recessionary market in my view and both could easily have been avoided. Both gasoline and homes are akin to "utilities" or necessaries that require a robust regulatory oversight.

Posted by: Major Mori | Mar 7, 2008 5:26:02 PM

On the internet, no one can be sure that you really aren't a sheep.

Posted by: ohwilleke | Mar 7, 2008 8:31:02 PM

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