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November 24, 2009

"Right and Left Join to Challenge U.S. on Criminal Justice"

The title of this post is the headline of this terrific (and heart-warming?) new article in the New York Times by Adam Liptak.  Here are excerpts:

In the next several months, the Supreme Court will decide at least a half-dozen cases about the rights of people accused of crimes involving drugs, sex and corruption.  Civil liberties groups and associations of defense lawyers have lined up on the side of the accused.

But so have conservative, libertarian and business groups.  Their briefs and public statements are signs of an emerging consensus on the right that the criminal justice system is an aspect of big government that must be contained.

The development represents a sharp break with tough-on-crime policies associated with the Republican Party since the Nixon administration. “It’s a remarkable phenomenon,” said Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers.  “The left and the right have bent to the point where they are now in agreement on many issues. In the area of criminal justice, the whole idea of less government, less intrusion, less regulation has taken hold.”

Edwin Meese III, who was known as a fervent supporter of law and order as attorney general in the Reagan administration, now spends much of his time criticizing what he calls the astounding number and vagueness of federal criminal laws.  Mr. Meese once referred to the American Civil Liberties Union as part of the “criminals’ lobby.” These days, he said, “in terms of working with the A.C.L.U., if they want to join us, we’re happy to have them.”

Dick Thornburgh, who succeeded Mr. Meese as attorney general under President Ronald Reagan and stayed on under President George Bush, echoed that sentiment in Congressional testimony in July....

Harvey A. Silverglate, a left-wing civil liberties lawyer in Boston, says he has been surprised and delighted by the reception that his new book, “Three Felonies a Day: How the Feds Target the Innocent,” has gotten in conservative circles. (A Heritage Foundation official offered this reporter a copy.)...

Several strands of conservatism have merged in objecting to aspects of the criminal justice system. Some conservatives are suspicious of all government power, while others insist that the federal government has been intruding into matters the Constitution reserves to the states.  In January, for instance, the Supreme Court will hear arguments in United States v. Comstock, about whether Congress has the constitutional power to authorize the continued confinement of people convicted of sex crimes after they have completed their criminal sentences.

Then there are conservatives who worry about government seizure of private property said to have been used to facilitate crimes, an issue raised in Alvarez v. Smith, which was argued in October....

Some religious groups object to prison policies that appear to ignore the possibility of rehabilitation and redemption, and fiscal conservatives are concerned about the cost of maintaining the world’s largest prison population....

The roots of the conservative re-examination of crime policy might also be found in the jurisprudence of Justices Antonin Scalia and Clarence Thomas.  The two justices, joined by liberal colleagues, have said the original meaning of the Constitution required them to rule against the government in, among other areas, the rights of criminal defendants to confront witnesses....

The conservative re-evaluation of crime policy is not universal, of course.  Two notable exceptions to the trend, said Timothy Lynch, director of the Cato Institute’s criminal justice project, are Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr.  “Roberts and Alito are coming down consistently on the side of the government in these criminal justice cases,” Mr. Lynch said.

Some scholars are skeptical about conservatives’ timing and motives, noting that their voices are rising during a Democratic administration and amid demands for accountability for the economic crisis.  “The Justice Department now acts as a kind of counterweight to corporate power,” said Frank O. Bowman, a law professor at the University of Missouri.  “On the other side is an alliance between two strands of conservative thinking, the libertarian point of view and the corporate wing of the Republican Party.”

Mr. Meese acknowledged that the current climate was not the ideal one for his point of view. “We picked by accident a time,” he said, “when it was not a very popular topic in light of corporate frauds.”

So, it seems that anyone inclined to complain about President Obama's failure to bring the left and the right together on important issues should be sure to acknowledge that at least partisan lawyers have recently been working in a bipartisan fashion to oppose Prez Obama's Justice Department.

Also, notably missing in this discussion is my favorite new arena for some right/left convergence: the Second Amendment.  Of course, many on the left and the right disagreed on the basic question of whether the Second Amendment protects an individual right.  But now that Hellerhas resolved this issue, I sense that folks on both sides generally agree that the Second Amendment should be incorporated against the states and that the scope of gun rights can and should be significantly restricted by lots and lots of reasonable regulations.

November 24, 2009 at 09:04 AM | Permalink


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It's interesting that Meese and Thornburgh are siding with the criminals now, but never did so when they served in Republican administrations.

If Reagan or Bush had stood up for liberalizing the criminal law, they probably could have gotten it done. Democrats would have been sympathetic, and a plurality of Republicans wouldn't have crossed a White House of their own party.

Obama cannot do this (and neither could Clinton), as it plays into the “soft-on-crime” liberal stereotype. Republicans would be in lock-step opposition, meaning that Obama would need every Democratic vote in the Senate, and he would not get them.

Posted by: Marc Shepherd | Nov 24, 2009 10:23:13 AM

I love how you excised out your own transparently false quote. Self-preservation really is the carving knife of perceived reality.

Posted by: La Rana | Nov 24, 2009 10:47:05 AM

La Rana: I make a habit of NOT quoting my own quotes in newspapers on my blog in all stories; I am not seeking to hide anything. Here is the quote in the NY TIMES that you reference:
"Scalia and Thomas are vanguards of an understanding by the modern right that its distrust of government extends all the way to the criminal justice system," said Douglas A. Berman, a law professor at Ohio State University.

I stand by that quote and cite the work of Scalia and Thomas in Apprendi and Blakely in support thereof. In particular, Justice Scalia's opinion in Blakely is ALL about distrust for government putting the power to punish in the hands of elite judges instead of law jurors.

Of course, it is true that in other settings --- especially in capital cases --- Scalia and Thomas are usually voting with the government. But this reality largely reflects their distrust for lower court judges whom they see often getting in the way of the voters' consistent support for the death penalty.

In addition, Justice Scalia has long been a strong voice in recent years for application of the rule of lenity in federal statutory construction cases and he has also recently been a key vote for defendants concerning both the right of confrontation and the right to counsel of choice.

Finally, Justice Scalia wrote the Heller opinion (with Justice Thomas in tow), and Heller reads to me as a classic "distrust of government" opinion. Notably, Chief Justice Burger not long ago called the individual rights view of the 2d Amendment a fraud, but now Scalia and Thomas are leading the charge the other way.

Posted by: Doug B. | Nov 24, 2009 12:27:30 PM

"Dick Thornburgh, who succeeded Mr. Meese as attorney general under President Ronald Reagan and stayed on under President George Bush, echoed that sentiment in Congressional testimony in July",,,,, July 22nd to be exact and well worth the effort and time to watch. Video available at the House Judiciary Web site. And while you are there pay attention to the testimony of Kathy Norris and Krister Evertson then tell me the system is not broken. Can anyone see a justification for H.R. 1529 the Second Chance for Ex-Offenders Act of 2009 in the testimony of these two people?

Posted by: T Kinney | Nov 24, 2009 1:13:57 PM

You seriously propose that Scalia and Thomas are leading the charge in speaking truth to power?

Your citations to Blakely and Apprendi to support your claim is like arguing that Scalia's dissent in Babbit v. Sweet Home and concurrence in Green v. Bock Laundry demonstrate that Scalia is at the forefront of the theory of statutory interpretation that the legislative history of a statute should inform its meaning. Its absurd and offensive to other human beings' ability to read.

With some notable exceptions, a common theme that emerges from Scalia's and Thomas's (to a lesser extent) opinions, is a complete acceptance and comfort with the imposition of coercion by the state. You can see this in Scalia's writing, in particular, in everything from Hudson v. Michigan, to the recent dissent in In re Troy Anthony Davis, to things as far afield as his dissent in Roemer v. Evans. Scalia and Thomas consistently side with the state in criminal justice cases, a fact of which you are well aware. Pointing out that they also made some noises about the state in the rare criminal justice cases that speak directly to the text and structure of the constitution is disingenuous at best.

Posted by: La Rana | Nov 24, 2009 1:32:23 PM

La Rana: Who said anything about "speaking truth to power"? My quote is not meant to assert ot suggest that Scalia and Thomas are now channeling Brennan and Marshall. Rather, the accurate point was that Scalia and Thomas have been vocal advocates of defendant rights against government/judicial power in the Blakely, Booker and Crawford lines, which has in turn helped some --- though still not enough --- thoughtful persons on the modern right to consider extending their inherent distrust of government power to the criminal justice system. I raise Heller in this context, too, because the Second Amendment is another constitutional setting in which some on the right sometimes recoil from broad government power often exercised through the criminal justice system.

Of course, there a lots and lots of criminal justuice cases --- especially capital cases and police practice cases --- in which Justices Scalia and Thomas regularly vote in favor of the state over criminal defendants. But that's true of ALL the Justices. And, most critically, the point of Liptak's article and of my quote is NOT to suggest that Scalia and Thomas are always the defendants' best friends, but rather to help persons who have knee-jerk reaction to these Justices to take a deep breath and perhaps contemplate that the Justices are not as black-and-white as you would like them to be.

Posted by: Doug B. | Nov 24, 2009 1:52:16 PM

Identifying those rare criminal cases that involve direct textual application of some apsects of the 6th amendment, to argue that Scalia and Thomas are leading proponents of a distrust in the criminal justice system, while ignoring all of the 4th, 5th and remaining 6th amendment cases and ignoring the plain fact that the extremely limited (in number and scope) cases you've identified speak as much to Scalia and (now)Thomas's "new textualism" (or whatever he calls it these days), reflects a "deep ignorance of important trends of modern constitutional criminal procedure."

A broken clock being right twice a day does not a "vanguard" of temporality make.

Posted by: La Rana | Nov 24, 2009 2:41:22 PM

Again, La Rana, you are miunderstanding my quote/meaning if you think I am claiming that "Scalia and Thomas are leading proponents of a distrust in the criminal justice system." My point is that Scalia and Thomas, though their anti-government statements in important cases like Blakely and Crawford and Heller can help some on the right see that general distrust of government power can/should extend to some measure of distrust in government application of the criminal justice system.

You clearly dislike of the jurisprudence of Scalia and Thomas. Fine. I do not pick favorite and least favorite justices, I just follow their actions. And, tellingly, here is just a partial list of some cases from just the last two terms in which Scalia and/or Thomas voted with the crminal defendant against the state:



There are many folks on the right --- including some who comment on this blog --- who seem to strongly resist EVER even questioning the work of "tough on crime" prosecutors and judges. To their credit, Scalia and Thomas seem prepared to question this form of government power in some settings. Of course, they are selective concerning when they are troubled by the exercise of criminal justice power, but so are lots of other Justices (especially Breyer and Ginsburg).

Posted by: Doug B. | Nov 24, 2009 3:33:23 PM

Over the course of this back and forth I'd come to suspect that that is what you intended. I am in complete agreement that those opinions will be helpful in revelaing the draconian criminal justice system as simply one aspect of state power that must be distrusted.

Unfortunately, that is not what the quote says. In the context you've used it, "vanguard" means leaders of the intellectual movement you are describing. This is clearly false, given the number of high-profile conservatives who have switched sides, so to speak, on the law and order paradigm.

The anti-government sentiment that appears in the cases you've identified reads much more like framing for the textual and precedential arguments (which makes sense - the constitution was specifically structured with that end in mind). It is impossible to square that language with the frequent and astonishing condescencion shown by Scalia and Thomas toward those trapped unfairly by some operation of the criminal justice system. Reading Scalia's opinions together, one gets the distinct sense that unless there is some textual argument, he first assumes that the state is and was correct, and then proceeds to justify this presumption.

Thomas is actually my favorite justice.

Posted by: La Rana | Nov 24, 2009 3:58:21 PM

La Rena --

"You seriously propose that Scalia and Thomas are leading the charge in speaking truth to power?"

I believe that, after President Obama's recent encounter with the Emperor of Japan, the revised version is: "Speaking truth to bower."

And moving right along............I'm not going to get between you and Doug, but I'll say just one thing. He and I come from nearly opposite points of view, but my experience is that he is an principled man and a pretty well balanced intellect. If there be a question about some quotation of his in the NYT, I'll bet dollars to doughnut holes that the problem is with the NYT, not Doug Berman.

Posted by: Bill Otis | Nov 24, 2009 4:59:00 PM

Now I am blushing, Bill, and I am also glad that we've reached a kind of consensus, La Rana. I understand how you can find off-putting much of the language used by Scalia when he votes with the government, especially in cases like Hudson and Davis and Roemer. But I find heartening his willingness NOT to cut the government ALL the breaks in cases like Blakely and in many other settings where lots of other on the right are all too eager to say the government rarely or never get it wrong or tries to go too far.

In the end, I surmise the term "vanguard" is what got us off-track. I sought to use the term to reference "leading edge" rather than leader, because it was way back in 2004 when Scalia gave us Blakely (as well as Crawford) and its anti-government sentiments. Glad we've figured each other out.

Posted by: Doug B. | Nov 24, 2009 5:41:31 PM

The thing Scalia has going for him is that he is frequently willing to set aside his political ideologies on the basis of his views on statutory interpretation, etc. (the fact that he frequently does the opposite - see Roemer, Chisolm, Sweet Home, Bush v. Gore - doesn't help, but there it is). He and Thomas are certainly the vanguard of your argument on the Court, but thats because Roberts and Alito have never seen a solicitor's presentation they didn't like.

As to whether Scalia or Thomas is genuinely concerned with the coercive power of the government, in the context of the criminal justice system or otherwise, I still completely disagree. As originalists of some formulation (we're all textualists, Scalia just likes to pretend otherwise), they are primarily interested in effectuating the original intent and/or meaning of the constituion. To this end, they harness the tyranny preventing purposes of the structure and text of the constitution to further their arguments - which is what we see in Blakely. This is merely a fashion, however.

You are right that I was overbroad in my statement that they vote with the government in almost every criminal justice case. But in every case where a concern for the power of the government really matters - which is to say a case that does not revolve around statutory interpretation and does involve something to which the constitution direction speaks, such as in the right to bear arms, right to a jury trial, etc. - Scalia and Thomas consistently express complete comfort with government power and complete disdain for the plight of those affected by it. It is impossible to read Hudson and most 4th amendment cases and conclude otherwise. Thats why I found your quote so disagreeable.

And thank you for not mistaking me for a lawyer. I hope to forever maintain that illusion.

Posted by: La Rana | Nov 24, 2009 7:06:19 PM

As for my opinion of Ed Meese's supposed scruples w/r/t aggrandizement and abuse of government power through the criminal justice system, I cannot say it better than this:


Posted by: Anon | Nov 24, 2009 10:01:21 PM

Marc Shepherd writes: "It's interesting that Meese and Thornburgh are siding with the criminals now..."

Siding with the CRIMINALS? Seems a bit jaundiced, Marc.

After all, for me the larger point here is to see if the judiciary is keeping the other branches honest so the innocent and wrongly accused don't end up doing time or getting executed?

To begin by dismissing citizens set upon by their government as criminals sort of spoils the exercise.

That said, Meese and Thornburgh WERE solidly on the G-team until it started rolling their country club friends with, ironically, some of the crap legislation that was the legacy of their guys, Nixon and Reagan.

BTW: Lawyer or not, I wish more lawyers were as outspoken and passionate as La Rana on the shortcomings of our highly politicized, mostly useless Supreme Court.

Posted by: John K | Nov 25, 2009 7:36:15 PM

Interesting read. I will have to bookmark for later.

Posted by: seattle criminal attorney | Nov 30, 2009 2:48:05 PM

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