"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.