Sentencing Law and Policy

"Marijuana: A Winning GOP Issue?" ... and a lost 2012 Romney opportunity

The title of this post is drawn from the headline of this notable recent commentary by Nate Cohn at The New Republic, which echoes some points that should be familiar to regular readers of this blog.  Here are excerpts from the commentary:

Young voters might be pro-Obama, but they're even more pro-marijuana.  While 60 percent of 18-29 year olds supported the president's reelection, the CBS News and Quinnipiac polls, as well as the Washington and Colorado exit polls, show an impressive 65-70 percent of voters under age 30 supporting marijuana legalization.  The rise of the millennial generation — not persuasion of older voters — is primarily responsible for marijuana’s growing strength in national polls, with 65 to 70 percent of seniors remaining opposed to marijuana legalization.  With generational change already responsible for the GOP's national struggles, the party could really use a break from cultural questions that pit its elderly base against millennials.

Fortunately for Republicans, they actually have a rare opportunity here to seize the middle ground and appeal to younger voters.  While the Republican rank-and-file still oppose outright marijuana legalization, the issue could fit within the party's ostensible state-rights philosophy.  GOP voters seem to agree.  CBS News found that 65 percent of Republicans support allowing state governments to determine the legality of marijuana, compared to just 29 percent who believed the federal government should decide.  Rand Paul has already suggested moderation on marijuana legalization as a helpful step toward coping with generational change.

But Republican advocates of marijuana moderation don't have an easy task.  Just because GOP voters might accept the state-rights frame provided by a poll question doesn’t mean that the frame would prevail in a debate.  The exit polls in Colorado and Washington, as well as recent Quinnipiac polls, suggest that about 65-70 percent of conservatives, white evangelical Christians, and Republicans are opposed to marijuana legalization.  If the Obama administration allowed Colorado and Washington to violate federal law, moderation might become even more difficult as conservative media launch a crusade against a lawless administration....

If Republicans don’t seize the middle ground on marijuana legalization, Democrats will eventually use the issue to their advantage.  Not only will Democratic primary voters demand it, they will have a lot to gain.  As more younger, pro-marijuana voters enter the electorate and replace their elders, support for marijuana legalization will continue to increase, absent intervening events that reshape public opinion, like a disastrous ending to the experiments in Colorado and Washington.  If marijuana becomes another partisan social issue, like gay marriage or abortion, it will make it even more difficult for Republicans to appeal to millennial voters.

Regular readers know I think these sentiments are spot on: way back in April 2012, I urged in posts and in a Daily Beast commentary that then-candidate Mitt Romney should embrace "Right on Crime" rhetoric about the need for criminal justice reforms and stress a states-rights approach to pot policy as a means to appeal to young voters.  I further stressed something missing in Cohn's discussion: the unique and important opportunity for the GOP to use crminal justice reform in general (and pot policy in particular) to stress its pro-liberty and small-government themes in a manner that should be especially salient and menaingful to minority voters. 

I very much doubt that conservatives and white evangelical Christians will be too troubled by a robust and honest GOP-led conversation about the real costs and benefits of pot prohibition.  Meanwhile, I genuinely believe many minority voters (young and old, men and women) will be quite thrilled to be supportive of any and all GOP leaders who, in that conversation, stress the considerable (and often disparate) harms to minority communities from low-level arrests and criminal justice entanglements that can flow from potential selective enforcement of pot prohibition.  In other words, if GOP leaders were to make a concern for racial justice an express feature of any effort to "seize the middle ground" with respect to pot policy, they might benefits politically in a number of diverse ways.

Taking these musing just a step further, I cannot help but (foolishly?) suggest that Mitt Romney might have actually won the November 2012 election if he had headed my criminal justice advice way back in April 2012.  As highlighted in this Nate Silver number-crunching post last month, Romney won every red state save one (North Carolina) by 8 or more percentage point.  It is hard to believe Romney loses any of those states by embracing "Right on Crime" rhetoric and stressing a states-rights approach to pot policy.  Meanwhile, Prez Obama eeked out razor thin victories in Florida, Ohio, Virginia, and Colorado, all of which are states in which a targeted states-rights message on pot policy and criminal justice reform could have alone possibly moved the needle a bit.  And, even more important, any move to the center on criminal justice would have usefully suggested that Romney was an independent thinker who would not just rely on the tired-old-GOP playbook on social issues. 

Gosh, it sure is fun and easy to be a pundit giving advice to the guy who lost so I can now say "you should have just listened to me...."   Perhaps this could even get me a gig on FoxNews in place of Dick Morris.

A few recent and older related posts: 

• "NAACP, right-wing foes get friendly" when it comes to prison costs
• "Marijuana backers court conservatives with appeals on states’ rights, ineffective pot laws"
• Could Romney appeal to independents and minorities with bold crime and punishment vision?
• A Beastly articulation of my (foolish?) hope candidate Romney might embrace the Right on Crime movement
• "The GOP platform’s surprisingly progressive stance on crime"
• When and how might pot prohibition or federal pot policy enter the 2012 Prez campaign?
• Is it really true that "conservatives and liberals are increasingly united" on criminal justice reform?
• "Conservatives latch onto prison reform"
• Female voters seen as key to success of pot reform initiatives
• Green tea party: will Glenn Beck or Sarah Palin or other professed liberty lovers support ending pot prohibition in California?
• How can and should we assess the "success" of medical marijuana and pot prohibition reform efforts?

"Republicans a victim of safer streets"

The title of this post is the headlined of this notable recent commentary by Charles Lane in the Washington Post.  Here are some excerpts:

Americans were unhappy about many issues as 2012 began. In one area, though, contentment reigned.  By a margin of 50 to 45 percent, a Gallup Poll reported, the public felt “satisfied” with the nation’s policies on crime.

It was a well-founded sentiment. In 2010, Americans were less than a third as likely to be victimized by violent crime as they had been in 1994; the murder rate had declined by roughly half.  Today we are approaching the low murder rates of the 1950s.

For the Republican Party, this is a triumph — and a disaster, as the 2012 election results proved.  It is a GOP triumph, because the enormous decline in crime over the past two decades coincided with the widespread adoption of such conservative ideas as “broken windows” policing and mandatory minimum sentences.

Whether such policies actually caused the crime decline is a separate, and much-debated, social-science question.  The important thing is that many people believe that they did.  As a result, conservative crime doctrine remains dominant in politics, with the two parties differing mainly over how to control and punish unlawful conduct most cost-effectively.

Hence the 2012 disaster for the GOP.  Beginning with Richard Nixon’s “law and order” campaign for president in 1968, Republicans pretty much owned the issue.  Fear of street crime — and its association, accurate or not, with post-’60s moral license, liberal Democratic policies and the rise of an urban black population — converted many a white working-class Democrat into a Republican....

As the first Democratic president since Clinton, and the first African American one ever, Barack Obama has done essentially nothing to reverse Clinton’s crime and welfare policies. He signed a bill reducing the disparity in penalties for crack and powder cocaine possession under federal law, a modest reform that enjoyed wide Republican support in Congress....

We’ll never know whether 2012 would have played out the same way if crime had staged a comeback during the recession, as many expected.  Certainly in the past, crime was as important to the Republican brand as abortion and gay rights, if not more important.  Safer streets, though, have blunted what was once a sharp wedge issue, and, perhaps, freed the electorate to consider social and moral issues in a different light.

In the crime-ravaged ’70s and ’80s, Clint Eastwood’s “Dirty Harry” Callahan acted out Middle America’s fantasy of a no-holds-barred war on crime.  By the time an elderly Eastwood appeared at the 2012 GOP convention, though, violent crime was a fading specter. And when he led the crowd in a chorus of “Go ahead, make my day,” it was history repeating itself as farce.

He should have said, “We need a new issue.”

I suggest that Republicans consider for their new issue a call to end federal pot prohibition, replaced by state-level regulation and experimentation on marijuana reform.  Among other benefits for Republicans, if an end to pot prohibition really does lead to an increase in crime and related harms, it can better trade of the political rhetoric of crime yet again.

Spotlighting connection between mental illness and extreme three-strike sentences

Yesterday's New York Times ran this interesting editorial by Brent Staples concerning the impact and import of the recent reform of California's three-strikes law.  The piece has a particular focus on the role mental illness may play in many of the most troubling sentencing outcomes resulting from extra tough recidivism sentencing enhancements.  The piece is headlined "California Horror Stories and the 3-Strikes Law," and here are excerpts:

Californians brought a close to a shameful period in the state’s history when they voted this month to soften the infamous “three strikes” sentencing law.  The original law was approved by ballot initiative in 1994, not long after a parolee kidnapped and murdered a 12-year-old girl.  It was sold to voters as a way of getting killers, rapists and child molesters off the streets for good.

As it turned out, three strikes created a cruel, Kafkaesque criminal justice system that lost all sense of proportion, doling out life sentences disproportionately to black defendants.  Under the statute, the third offense that could result in a life sentence could be any number of low-level felony convictions, like stealing a jack from the back of a tow truck, shoplifting a pair of work gloves from a department store, pilfering small change from a parked car or passing a bad check.  In addition to being unfairly punitive, the law drove up prison costs.

The revised law preserves the three-strikes concept, but it imposes a life sentence only when the third felony offense is serious or violent, as defined in state law.  It also authorizes the courts to resentence thousands of people who were sent away for low-level third offenses and who present no danger to the public.

The resentencing process is shaping up as a kind of referendum on the state’s barbaric treatment of mentally ill defendants, who make up a substantial number of those with life sentences under the three-strikes rule.  It is likely that many were too mentally impaired to assist their lawyers at the time of trial.

Mentally ill inmates are nearly always jailed for behaviors related to their illness. Nationally, they account for about one-sixth of the prison population.  The ratio appears to be higher among three-strike lifers in California.  According to a 2011 analysis of state data by Stanford Law School’s Three Strikes Project, nearly 40 percent of these inmates qualify as mentally ill and are receiving psychiatric services behind bars....

Asked about the relationship of mental illness and three-strikes prosecutions, Michael Romano, director of the Stanford project, responded, “In my experience, every person who has been sentenced to life in prison for a nonserious, nonviolent crime like petty theft suffers from some kind of mental illness or impairment — from organic brain disorders, to schizophrenia, to mental retardation, to severe P.T.S.D.,” or post-traumatic stress disorder. Nearly all had been abused as children, he pointed out.  All had been homeless for extended periods, and many were illiterate. None had graduated from high school.

In other words, these were discarded people who could be made to bear the brunt of this brutal law without risk of public backlash.... And as more cases unfold in court, judges, lawyers and Californians should look back with shame at the injustice the state inflicted on a vulnerable population that often presented little or no danger to the public.

Some recent related posts:

• California voters appear to be approving three-strikes reform, rejecting death penalty repeal
• Intriguing accounts of how California's three-strikes reform will be implemented
• Effective report on three-strikes reform implementation in San Diego
• First California prisoner released under reformed three-strikes has lots of voters to thank

First California prisoner released under reformed three-strikes has lots of voters to thank

It is poetic that the reform of California's three-strikes law approved overwhelmingly by state voters earlier this month produced the first resentencing and prisoner release just before the Thanksgiving long weekend.  Here are the details from this local report headlined "Revised California 3 Strikes law: Man becomes first to be re-sentenced under Prop. 36":

A man sentenced to 25 years to life in prison under California's "three strikes" law in 1996 was re-sentenced Wednesday to about 15 years, and released based on credit for time served.

Kenneth Glenn Corley, 62, became the first person to be re-sentenced under Proposition 36, passed earlier this month by California voters.  When Corley was convicted of drug possession for sale, he had two felony "strikes" for burglary and attempted burglary and was given the mandatory 25-years-to-life sentence on Oct. 8, 1996.

He was re-sentenced Wednesday by San Diego Superior Court Judge David Danielsen. "Many prosecutors in the state, including our office, were already working to address the unintended consequences of the 'three strikes' law,'" said San Diego County District Attorney Bonnie Dumanis. "Now that Prop. 36 has passed, the work we have already done to review these cases should make the process of assessing the petitions go more smoothly."

Justin Brooks, with the California Innocence Project, told 10News, "No violent offenses; it's basically a guy who had a drug addiction and committed a lot of property crimes and got sentenced to prison for the rest of his life."  Brooks has been working on Corley's case for nearly two years.  He has lined up a job for Corley and even arranged for him to live in a local halfway house....

Prosecutors, defense attorneys and San Diego Superior Court officials are preparing for 200 to 300 requests from state inmates seeking reductions in their prison sentences.  A judge will need to determine if the offender poses an unreasonable risk to public safety before permitting a re-sentencing....

Proposition 36 modified the law to require a sentence of 25 years to life only if the third strike was a serious or violent felony, or upon a conviction for another qualifying factor, such as use of a deadly weapon or intent to inflict injury. It is retroactive to the extent that it allows certain inmates whose third strikes were nonviolent, non-serious felonies and are serving life terms to seek a new sentencing hearing.... Under the three strikes law, 8,800 prisoners have been sentenced to life in prison, and 3,000 of them are eligible for release under Prop. 36.

I suppose the only disturbing part of this story is that shoppers in California now need to worry about one more shopper in line for the big Black Friday sales.

Female voters seen as key to success of pot reform initiatives

The Atlantic has this notable new article reviewing the electorial success of the marijuana initiatives in Colorado and Washington.  The piece is headlined "The Secret Ingredients for Marijuana Legalization: Moms and Hispanics," and here are excerpts:

A few days before last Tuesday's election, New Approach Washington, the group pushing a ballot issue to legalize marijuana in the state, posted its final ad of the campaign. The spot featured a "Washington mom" -- a woman in her mid-40s, sitting on her porch, flanked by pumpkins -- who took the viewer through the assorted restrictions and benefits both minors and businesses would see once the measure, Initiative 502, was implemented: ID checks. Fewer profits for the cartels. Increased funds for schools. More time for police to "focus on violent crime instead."  In short, all of the top concerns that an average mom in the Evergreen State would seem to have about making pot legal.

But New Approach's ad was about more than just capturing the votes of a major demographic -- the same one that helped reelect President Obama and the one that kept GOP Senate hopefuls Richard Mourdock and Todd Akin at bay.  Legalization advocates have found that female support tends to be a leading indicator for marijuana measures. In the case of both California's 2010 and Colorado's 2006 votes, sagging support among women preceded a collapse in men's support too.  In California, for instance, support from women saw a 14-point swing against legalization over the final six weeks, dragging support from men under 50 percent.

"Historically, as soon as women really start to create a [gender] gap, a marijuana measure gets killed," says Allen St. Pierre, executive director of National Organization for the Reform of Marijuana Laws.  "If women get weak-kneed, the men will start to drop."

Armed with that knowledge about why previous attempts had failed, campaigns in both Washington and Colorado set out to court women . Their efforts appear to have paid off. Both states approved measures legalizing marijuana with the backing of some 55 percent of the electorate.  That was stronger than even proponents expected -- they had been cautiously optimistic about the Washington vote, but the Colorado measure appeared to be fading down the stretch. (Advocates in Oregon, where a marijuana-legalization measure failed on Tuesday, faced larger problems than merely enlisting females -- too little time to canvass, too few funds to spend.)

Convincing women -- mothers, especially -- that legalization wasn't simply about stoners and libertarians was essential to ending blanket prohibition.  They needed to be assured this was sound policy and that their children would not be affected. "We definitely wanted to reach [women]," says Tonia Winchester, the outreach director behind the Yes on I-502 camp.  "We were very much focused on not being a pro-pot campaign but a pro-policy campaign, showing that we could shift resources from incarcerating and focus on programs we knew would work."...

[W]omen aren't the sole demographic pro-legalization camps eyed.  After all, much as Obama's reelection showed that the Anglo-Christian-male bloc has become insufficient for victory -- if, as David Simon wrote, "there is no normal" -- marijuana backers understood they'd need to cultivate their own coalition of communities.

Perhaps predictably, a strong majority of the under-65 crowd showed support for measures in both states, leaving seniors as the sole age-based demographic demurring.  The big surprise came in the ethnic breakdown.  While there isn't sufficient polling on non-whites in Washington to draw conclusions, Colorado -- where the white population split on the measure -- saw Latinos support legalization at a 70 percent rate, double the national rate among the group....

Winchester says her organization also focused efforts on campaigning in Washington's Latino community, meaning that women, youth, and minorities -- the triumvirate that sealed Obama's second term -- played a similarly pivotal role in ending marijuana prohibition in both states....

Now that his organization has arrived at the hemp-lined embankments on the far side of the Rubicon, St. Pierre noted the momentum and demographics were firmly on legalizers' sides. With the victories -- and with the new numbers from a Washington Post national survey showing that 48 percent of Americans support marijuana legalization, the highest number in the history of the poll -- St. Pierre laid out a handful of states that he thinks may be the next to pass outright marijuana legalization, including Vermont and Maine, as well as second attempts in California and Oregon.

Effective report on three-strikes reform implementation in San Diego

The San Diego Union-Tribune has this new article headlined "Some prisoners to get out of life sentencing," providing an effective overview on how the initiative-passed reform of California's three-strikes law is going to be implemented in one locality.  Here are excerpts:

Prosecutors, defense lawyers and San Diego Superior Court officials are preparing for about 250 requests from state inmates seeking reductions in their prison sentences after voters approved a ballot measure revising California’s three-strikes law.

Since voters overwhelmingly passed Proposition 36 on Nov. 6, the San Diego County District Attorney’s Office has received a dozen petitions from state prisoners. The county’s Office of the Public Defender, which will handle the bulk of the cases, estimates 243 state prisoners are eligible for resentencing.

Some, but not all, could end up with a chance at getting out from underneath life sentences in state prison.  Not everyone who asks for a new hearing will qualify for one, lawyers said. And for those that do, a sentence reduction will not be automatic.  Judges will still have the final call on whether to reduce the sentence....

Proposition 36, which is retroactive, modified the law to require a sentence of 25 years to life only if the third strike was a serious or violent felony.  It also allows certain inmates whose third strike was a nonviolent, nonserious felony — writing fraudulent checks, for example — and are serving life terms to seek a new sentencing hearing.

Their sentences could be reduced to that of a two-strike defendant.  So, someone who was convicted of a third-strike crime whose normal sentence was four years, and was sentenced under the original law to 25 years to life, could now end up with a sentence of eight years.

But several provisions under the ballot measure would disqualify some inmates who appear to meet that criteria from getting a new hearing, said Deputy District Attorney Lisa Rodriguez, who is working to implement the new law.  Inmates who are registered sex offenders won’t qualify, Rodriguez said.  Prisoners with convictions for rape or child molesting also won’t qualify for a new hearing, even if their final strike was a nonserious felony, she said.  Certain convictions that involved the use of a firearm or drugs also will disqualify inmates, Rodriguez said.

Those who do qualify for a hearing still have to face a judge, who can refuse to resentence an inmate if it is determined doing so presents an “unreasonable risk to public safety.” That clause will likely be the focus of contested hearings where lawyers for inmates will argue against prosecutors opposed to a lighter sentence.  Rodriguez said inmates’ prior convictions and their record of behavior in prison will be part of those hearings....

The first hearings in San Diego County to reduce sentences under the new law are weeks away, Deputy Public Defender Michael Popkins said.  He estimated about 3,000 inmates in the state could qualify for resentencing. Popkins said Proposition 36 has given inmates and their families new hope. Cases identified by his office involve prisoners sentenced as long as 18 years ago, and as recently as two years ago....

Statewide, the measure passed with a resounding 68.8 percent of the vote.  Voters in San Diego County backed the measure by about the same margin, with 67 percent in favor.

I find notable and valuable the reality that an offeners' "record of behavior in prison" will be part of any resentencing proceedings.   I suspect one under-appreciated benefit of any and all retroactive sentencing reforms — whether achieved via new statutes, new sentencing guidelines or Eighth Amendment litigation — is that they create an enduring incentive for even prisoners serving extremely long terms to behave well while incarcerated and to seek out whatever rehabilitation programs are available to them even if they have only limited prospects for release from prison for many decades.

Group of Congress members formally urge DOJ and DEA not to bogart pot policy

As reported in this local piece from Seattle, headlined "Rep. Adam Smith asks DOJ to respect state marijuana laws in formal letter," a collection of Democratic members of Congress have sent a request to the US Justice Department and the US Drug Enforcement Administration concerning state marijuana reform efforts. Here are the basics from the press report:

U.S. Rep. Adam Smith and 17 other U.S. Congress members formally asked the Department of Justice and Drug Enforcement Administration not to enforce federal drug laws against marijuana use in Washington and Colorado in a letter released Friday. Though both states have made regulated, recreational use of marijuana legal, federal agencies still have the power to enforce a federal ban on the drug.

“We believe that it would be a mistake for the federal government to focus enforcement action on individuals whose actions are in compliance with state law,” says the letter addressed to Attorney General Eric Holder and Drug Enforcement Administrator Michele Leonhart....

The letter then goes on to ask federal drug law enforcers to allow states such as Washington and Colorado to be “laboratories of democracy” that help progress drug policy nationwide.  “These states have chosen to move from a drug policy that spends millions of dollars turning ordinary Americans into criminals toward one that will tightly regulate the use of marijuana while raising tax revenue to support cash-strapped state and local governments,” the letter says.  “We believe this approach embraces the goals of existing federal marijuana law: to stop international trafficking, deter domestic organized criminal organizations, stop violence associated with the drug trade and protect children.”

The full letter is available at this link.

"Americans Voting Smarter About Crime, Justice At Polls"

The title of this post is the headline of this lengthy commentary by Radley Balko at The Huffington Post. Here are excerpts, which close with an especially interesting quote about folks inside the Obama Administration being surprised by some of the election day criminal justice outcomes:

A headline from the Denver Post this week read: "Colorado Drug Force Disbanding." Another from the Seattle Times announced, "220 Marijuana Cases Dismissed In King, Pierce Counties." Just 15 or 20 years ago, headlines like these were unimaginable. But marijuana legalization didn't just win in Washington and Coloardo, it won big.

In Colorado, it outpolled President Barack Obama.  In Washington, Obama beat pot by less than half a percentage point.  Medical marijuana also won in Massachusetts, and nearly won in Arkansas.  (Legalization of pot lost in Oregon, but drug law reformers contend that was due to a poorly written ballot initiative that would basically have made the state a vendor.)

But it wasn't just pot. In California, voters reined in the state's infamous "Three Strikes and You're Out" law, passing a measure that now requires the third offense to be a serious or violent felony before the automatic life sentence kicks in.  The results don't negate the law, but they do take some of the teeth out of it.  And the margin -- the reform passed by more than a 2-to-1 margin -- has significant symbolic value.  Three Strikes was arguably the most high-profile and highly touted of the get-tough-on-crime policies of the 1980s and 1990s. It epitomized the slogan-based approach to criminal justice policy that politicians tended to take during the prison boom.

Eric Sterling served on the House Subcommittee on Crime in the 1980s.  Today, as president of the Criminal Justice Policy Foundation, he works to reform many of the laws he helped create. Sterling is encouraged by what he saw last week. "I definitely think we're seeing a shift in the public opinion," he says. "This election was really a game changing event."...

But Julie Stewart, president of the criminal justice reform group Families Against Mandatory Minimums, remains skeptical. "I think it’s too early and too easy to say that the electorate has moved away from its love affair with punishment," Stewart says.  "While it’s refreshing to know that voters in the initiative states understand that reforms were necessary and good, I hear from prisoners every day who are being sentenced to decades behind bars for nonviolent drug offenses.  We still have a very long way to go to reach the tipping point that will significantly change our national affection for over-punishment."

Another reason for putting too much emphasis on the election results: Even if the public mood has shifted, Congress is usually way behind.... Politicians at the state and local level have been more willing to embrace reform.  Both Stewart and Sterling say that's because they have no choice. "Governors need to balance budgets," Sterling says....

Stewart says the right will also need to come on board before there's any major changes to the federal system. "I don’t think significant reform could ever happen without conservative leadership," she says. "The crack cocaine sentencing reforms of 2010 would not have happened without Sen. Jeff Sessions (R-Ala.) support...."

The one thing the 2012 results may do at the federal level is begin to convince some politicians that advocating reform is no longer political suicide.  "This year’s initiatives in California, Colorado and Washington do indicate a changed public perception about punishment and marijuana in those states," Stewart says. "That should give legislators the freedom, if they choose to exercise it, to ease their tough-on-crime positions and not have to worry about surviving the next election."

Sterling agrees. "I think it could give some cover to political leaders who already thought these things but were afraid to say them.  My contacts close to the Obama administration say they were really taken aback by the results in those states.  They didn't expect the vote to be as lopsided as it was. I think they really don't know what to do right now. But when medical marijuana first passed in California 16 years ago, you saw (Clinton Drug Czar) Barry McCaffrey preparing his counterattack within hours.  I haven't heard of anything like that in the works this time around.  I think that's a good sign."

Reform advice for Prez Obama's second term at The Crime Report

The folks at The Crime Report have recently posted this group of terrific commentaries with post-election advice for President Obama:

• A Post-Election Justice Reform Agenda by Glenn E. Martin

• Will the President Heed the Call For Justice Reform? by Vanita Gupta and Ezekiel Edwards

• It’s Time to Address Federal Prison Overcrowding by Matthew Mangino

• Obama Can Alter the Landscape of Criminal Law by Bruce Barket

California voters appear to be approving three-strikes reform, rejecting death penalty repeal

As of the writing of this post, Election Day has been over for three hours in my time zone and is just about to end in California.  According to the result on this official California webpage with right now just over half of all precincts reporting, Proposition 34 calling for the repeal of California's death penalty is losing the popular vote by 46% to 54% and Proposition 36 calling for the reform of California's severe three-strikes sentencing law is winning the popular vote by 68% to 32%.

Assuming that the precinct which have reported are faily representative, it looks as though the voters in California are going to keep the death penalty on the books and are going to curtail the harshest aspects of the state's recidivism sentencing law.  Though I had predicted these basic outcomes (informed by the generally on-point polling data from the last few weeks on these issues), I am a bit surprised that the death penalty repeal vote is so close and that the three-strikes reform vote is so one-sided.

Ain't democracy grand!

Voters call for experimenting with pot in the state laboratories of Colorado and Washington

I thought it would be remarkable and remarkably important if voters in just one state through the ballot initiative process had legalized marijuana.  But, as reported in this NBC News piece headlined "Colorado, Washington approve recreational marijuana use," it appears voters in two states are ready to experiment with ending pot prohibition. Here are the basics:

Voters in Colorado and Washington on Tuesday approved measures allowing adults to use marijuana for any purpose, NBC News projected, marking an historic turning point in the slow-growing acceptance of marijuana usage.

In Massachusetts, voters also approved an initiative allowing people to use marijuana for medicinal purposes, NBC News projected. In Arkansas, a similar initiative failed, according to NBC News projections....

The laws legalizing marijuana for recreational or other purposes could face federal challenges, because marijuana possession is still a federal crime. But so far, the Justice Department has declined to discuss how it might react if the laws pass....

Opponent Kevin Sabet, a former senior advisor to the Obama administration and an assistant professor at the University of Florida’s college of medicine, said he was expecting legal challenges at the state and federal level. “This is just the beginning of the legalization conversation, so my advice to people who want to toke up legally or think that they can buy marijuana at a store tomorrow is that we’re a very long way from (that),” Sabet said.

Proponents of the legislation also said they expected some legal wrangling. “It sets up a clear and obvious challenge with the federal government,” said Allen St. Pierre, executive director of NORML, which has fought for years to legalize cannabis.

But proponents also were celebrating what they saw as a turning point in a long-running battle to make marijuana more available to the general public. “We are reaching a real tipping point with cannabis law reform,” said Steve DeAngelo, a longtime advocate for legalizing marijuana and the director of the nation’s largest medical cannbabis dispensary, Harborside Health Center in Oakland, Calif.

Colorado Gov. John Hickenlooper acknowledged legal challenges but said the state would work to resolve the conflict between federal and state laws. "It's probably going to pass, but it's still illegal on a federal basis. If we can't make it legal here because of federal laws, we certainly want to decriminialize it,” he told NBC’s Brian Williams.

This lengthy Huffington Post article discusses these developments and the intricacies of the legal process going forward in Colorado.   This piece also includes this amusing reaction to the Colorado outcome:

Colorado Gov. John Hickenlooper, a vocal opponent to the measure, reacted to the passage of A64 in a statement late Tuesday night: "The voters have spoken and we have to respect their will. This will be a complicated process, but we intend to follow through. That said, federal law still says marijuana is an illegal drug so don’t break out the Cheetos or gold fish too quickly."

With Prez Obama projected to win second term, could sentencing reform get a boost?

All the major networks are now projecting that President Barack Obama has tonight won a second term; my first thought, of course, is to start to speculate about what this could mean for the future of sentencing reform.  For many reasons, I think the outcomes of the three state marijuana legalization initiatives and the California three-strikes and death penalty initiatives could ultimately have more national criminal justice echoes than the presidential results.  Still, with the occupant of the White House now certain again, I see two great new uncertainties concerning the prospects for future criminal justice reforms:

1.  After a pretty "status quo" first term with very little political capital or energy spent on criminal justice reform, might President Obama give more attention to criminal justice reform issues in his second (lame-duck) term?  Might he, for example, start using his clemency powers more fully or urge his Justice Department to advocate more forcefully for reductions in federal prison populations?

2.  Upon recognizing that the party's national election fate could be doomed by an enduring failure to appeal to minority and younger voters, might some of the smartest stategists within the GOP view criminal justice reform (and especially drug war reform) as a potential means to seek to reconnect with these critical voting blocks?

I fear that the answer to all these questions will end up being no, but it could become a really exciting time for sentencing reform fans if some of these questions are answered yes.

Seeking Election Day predictions on the biggest criminal justice initiatives

As regular readers know, I will be staying up very late this evening to see election results from all the western states that have been criminal justice initiatives on the ballot today.  I have long been tentatively predicting that one of three marijuana legalizations initiatives will pass and that California voters will approve reform of its three-strikes law and reject abolition of its death penalty.  But this is guesswork, and I am eager to hear other prediction as we all await these (and other) results.

P.S.  Nobody is allowed to comment unless and until they have at least tried to vote!

A few criminal justice headlines on Election Eve

I may be too exhausted from fast-forwarding through a stunning number of election ads to put together a detailed SL&P election 2012 guide in the next few days. Fortunately, a lot of the highlights for sentencing fans can be found in old and new media stories, such as these I noticed this morning:

• From The Crime Report here, "Election 2012: Crime Policy at the Crossroads"

• From the Daytona Beach News-Journal here, "Felons find restoring right to vote a harder task now"

• From Bloomberg here, "Marijuana’s Recreational, Medical Use on Ballots in Six States"

• From policymic here, "California Propositions: Prop 34 and Prop 36 Could Have National Reprecussions"

• From the National Journal here, "The 10 Biggest Legal Stories to Watch on Election Night"

Latest poll shows death penalty repeal leading in California

As reported in this new front-page Sacramento Bee article, advocates for repeal of the death penalty in California have some (surprisingly?) good news in the latest polling data.  The article is headlined "Field Poll shows measure to end death penalty gaining, but still lacking 50%," and here are excerpts:

With concern over the cost of capital punishment rising, California voters may be poised for a historic vote to abolish the state's death penalty, a new Field Poll indicates.

Support for the measure, Proposition 34, remains below 50 percent. But the poll released this morning found 45 percent of likely voters favor replacing the punishment with life in prison, while 38 percent oppose doing away with capital punishment. Another 17 percent say they remain undecided.

The latest survey shows support for abolishing the death penalty rising as Election Day nears. A Field Poll released in September found 42 percent in favor of the measure and 45 percent opposed, with 13 percent undecided at that time.

"It's certainly an encouraging poll for the Proposition 34 supporters, but it still has a long way to go," Field Poll Director Mark DiCamillo said. "It's got to get above 50 percent, and it's moving in the right direction." DiCamillo said many measures tend to lose support after voters take a closer look at the issues, but Proposition 34 "is actually gaining strength as voters learn more about it."

That may stem from the fact that there is an increasing number of likely voters – 53 percent in the new poll – who have concluded that maintaining the death penalty is more expensive than keeping inmates in prison for the rest of their lives. The proponents of Proposition 34 have based their campaign on that notion, saying California could save hundreds of millions of dollars by doing away with the death penalty and that the state has spent $4 billion to execute only 13 inmates since the death penalty was reinstated in 1978.

"The single issue that reasonates is cost," said Sacramento attorney Don Heller, who wrote the initiative that restored the death penalty in California in 1978 but now opposes capital punishment. "Even when you address the issue of potentially executing an innocent person, it's the cost that reasonates. All of a sudden it's being brought home, when counties are going bankrupt and cities are going bankrupt, that there's just not enough money out there."

Death penalty supporters dispute the cost savings claims and questioned the latest poll figures, especially the finding that 17 percent of voters are undecided on such an issue. "This poll shows that Proposition 34 continues to be under 50 percent," said Peter DeMarco, a spokesman for opponents of the measure. "It's never been above 50 percent since the beginning of the campaign. And I think the 17 percent undecided is significantly inaccurate for an issue that is of such familiarity in California."

DeMarco said he believes that when voters are asked to actually decide, they will trend toward keeping the death penalty in place. He noted that numerous law enforcement groups, prosecutors and political leaders have spoken out against Proposition 34....

The poll of 1,566 likely voters was taken in two waves of telephone questioning, the first from Oct. 17-24 and the second from Oct. 25-30, and the initiative gained support in the later survey period. In the first wave, the measure was nearly tied, with 41 percent saying they would vote to abolish the death penalty and 40 percent opposed. It was in the second round of interviews that support rose to 45 percent.

I think it is fair to predict that repeal of California's death penalty via voter initiative would be a transformative moment in the modern history of the death penalty in the United States.  Depite these latest poll numbers, I am still expecting/predicting that Proposition 34 will fail.  Nevertheless, I find the trends here fascinating and perhaps yet another example of Justice Thurgood Marshall's (in)famous hypothesis in Furman that the more informed people are about the actual operation of the death penalty, the less likely they are to support its administration.

Some very recent related posts (with lots of notable comments):

• If money can really buy elections, the death penalty will be dead in California
• If major newspaper editorials matter, the death penalty will be dead in California
• New poll numbers (and polling techniques) surrounding California DP repeal initiative
• Gov Jerry Brown's notable (wise? unprincipled? chicken$%#&?) evolution concerning California's death penalty
• New poll suggests death penalty repeal has a chance on California ballot
• "An odd conservative split on Propositions 34 and 36"
• Latest California polling data suggests hard-core sentencing will be up real late on election night
• Three former California Govs (but not the Terminator) advocate against terminating the death penalty

If nothing else, pot legalization initiatives in 2012 have produced serious buzz

With now less than a week to go before election day, the mainstream media is starting to discuss more broadly the possibility that one or more state will legalize marijuana.  Here is just a sampling of some of the notable recent media stories from outside the trio of states (Colorado, Oregon, Washington) in which voters are soon to have their say on state pot prohibition:

• From Governing magazine here, "Marijuana Legalization Close to Passage in Two States"

• From NPR's On Point here, "Marijuana On The Ballot"

• From The Washington Times here, "Governor fights legalizing of pot in Colorado: Prohibition would be lifted"

UPDATE:  This new AP story provides more interesting marijuana reform food for thought. It is headlined "Mexican think tank says Colorado, Washington, Oregon pot legalization would cut cartel profit."

Three former California Govs (but not the Terminator) advocate against terminating the death penalty

As reported in this Reuters article, which is headlined "Trio of former California governors seeks to preserve death penalty," some former chief executives of the Golden State are speaking out about the state's death penalty ballot initiative. Here are the details:

A trio of former California governors urged voters on Tuesday to preserve the death penalty in the state by defeating a ballot initiative seeking to abolish capital punishment on cost grounds, and a recent poll showed the measure gaining support but falling short of passing.

The initiative, if passed by voters next week, would automatically commute the sentences of 725 death row inmates in California, which has nearly a quarter of the nation's condemned prisoners but has executed none in the last six years.

"Prop. 34 is a horrible injustice," said former Democratic Governor Gray Davis, referring to the ballot proposition.  "Like a giant eraser, it would wipe out the death penalty convictions of 700 killers on death row."

Those convicts are responsible for killing 200 children and 43 police officers, said Davis, who was governor from 1999 to 2003 and who was joined in opposing death penalty repeal by former Republican governors Pete Wilson and George Deukmejian.  "Don't let the bad guys on death row win," Davis said.  The governors were joined at a Los Angeles hotel by relatives of murder victims, prosecutors and police officers.

California Governor Jerry Brown, a Democrat, and his Republican predecessor, Arnold Schwarzenegger, have been silent on the initiative.

The push by the former governors follows a poll of 1,504 registered voters released on Friday by USC Dornsife and the Los Angeles Times that showed support for repeal at 42 percent, with 45 percent opposed.  The poll had a margin of error of 2.9 percent.  Those numbers represented a much narrower gap than in a September survey by the same group that showed the pro-repeal side at 38 percent compared to 51 percent who wanted to keep the death penalty.

Latest California polling data suggests hard-core sentencing will be up real late on election night

I have an inkling (and certainly a hope) that we will know the outcome of the 2012 presidential election not all that long after 9pm EST on November 6th: the polls will by then be closed in the crucial swing states of Colorado, Florida, Iowa, New Hampshire, Ohio, and Virginia.  But this big Los Angeles Times article, which provides the latest poll numbers on the two big sentencing reform ballot initiatives in California, suggests that hard-core sentencing fans should plan for very late night watching election returns from the Golden State. the article is headlined "Support for end to California death penalty surges; Nearly half of registered voters still back capital punishment, but the margin has shrunk to 3 percentage points; Voters also favor easing the three-strikes law." Here are excerpts:

Voter support for a ballot measure to repeal California's death penalty has jumped dramatically, though not enough to ensure its passage, a new USC Dornsife/Los Angeles Times poll has found. Support for a separate measure that would ease the state's three-strikes sentencing law remained high, with more than 60% in favor of amending it.

The survey, conducted last week, showed that the gap between supporters and opponents of Proposition 34, the capital punishment measure, is now very small — only 3 percentage points — compared with last month.  Still, less than half of respondents said they would vote for the measure, which would replace the death penalty with life imprisonment without the possibility of parole.

Forty-two percent said they would vote for Proposition 34, with 45% saying no. In September, the gap was 38% to 51%, a 13-point difference.  A significant 12% of respondents said they did not know how they would vote, nearly identical to the 11% who had not decided last month.  "There is no question there has been a sharp shift," said Dan Schnur, who heads the Jesse M. Unruh Institute of Politics at USC.  The results suggest that passage is "not impossible" but still "very difficult," Schnur said.

When voters heard more information about Proposition 34, such as its financial ramifications and details of the effect on prisoners, responses flipped: 45% were in favor and 42% against — still very close to the survey's margin of error, which is 2.9 percentage points.

The latest USC Dornsife College of Letters, Arts and Sciences/Los Angeles Times poll [with crosstabs available here] questioned 1,504 registered voters by telephone from Oct. 15 to Oct. 21, before the Proposition 34 campaign launched radio and television ads. Greenberg Quinlan Rosner Research, a Democratic firm, did the survey with American Viewpoint, a Republican company. 

Proposition 34 would apply retroactively to condemned inmates, require convicted murderers to work in prison and contribute to victim restitution funds, and direct $100 million to law enforcement over four years.  It could save the state as much as $130 million a year, according to California's nonpartisan legislative analyst.  California has more than 727 inmates on death row, the most in the nation....

Natasha Minsker, campaign manager for Proposition 34, said the poll's findings prove that "this election is absolutely moving in our direction."  But Peter DeMarco, a strategist for the opposition, expressed confidence that the shift was too small to make a difference....

Meanwhile, support for the three-strikes measure, Proposition 36, has held relatively steady in recent weeks, with 63% of voters in favor, 22% opposed and 15% undecided or not answering.  Last month, the initiative was leading by 66% to 20%.  "Unless the opponents can convince voters that the criminals being impacted by this measure are still dangerous, the initiative looks pretty safe at this point," Schnur said. 

The three-strikes law allows prosecutors to seek sentences of 25 years to life for any felony if offenders were previously convicted of at least two violent or serious crimes, such as rape or residential burglary. Proposition 36 would amend the law so offenders whose third strikes were relatively minor felonies, such as shoplifting or drug possession, would no longer be eligible for life terms.  Of the state's nearly 8,900 third-strikers, about a third were convicted of drug or minor property crimes.

This week, the proposition's campaign unveiled a television ad in which the district attorneys from Los Angeles, San Francisco and Santa Clara counties tell voters that the amendment would ease prison overcrowding, save the state millions of dollars and "make the punishment fit the crime."  Opponents point out that the current law already allows prosecutors and judges to spare a third-striker the maximum sentence and argue that flexibility is needed to protect the public.

I suspect that the polling on these sorts of initiatives can be subject to lots of statistical noise, so I am quite chary about making book on these latest poll numbers.  That all said, it will be big news if either of these sentencing reform initiatives pass, and huge news if they both do.  Thus, I now have yet another reason to wish Election Day 2012 was here already.

Latest campaign front news concerning California death penalty repeal initiative

This new local article, headlined "California's Prop. 34: Battle over fate of state's death penalty heating up," reports on the latest campaign developments two weeks before California's go to the polls to decide whether to repeal the state's death penalty. Here are excerpts:

[T]he two rival campaigns are unveiling ads this week relying on very different messages to appeal to voters being asked for the first time to abandon the death penalty since it was restored more than three decades ago. In short, the pro-Proposition 34 forces are asking voters to save California money and rid the state of the justice system's most costly and controversial law. And law enforcement foes of the measure are reminding the public of the notorious killers who wind up on death row, from Richard Allen Davis to mass murderer Charles Ng.

Proposition 34 backers on Monday launched a series of statewide television and radio ads, bankrolled by a campaign that has pulled in more than $6.5 million from a roster of the rich and famous. Actors Martin Sheen and Edward James Olmos provide the introductions to the television ad, which features a Los Angeles man who spent more than 20 years in prison for a murder he did not commit.

The radio spots focus on the central theme of the Proposition 34 campaign: that the California death penalty system is too flawed and expensive to maintain and should be scrapped to save what backers say could be a billion dollars or more in the coming decade. Don Heller, a former Sacramento prosecutor who co-authored the 1978 law and has now renounced the death penalty, anchors the radio ads. "These ads are going to be important," said former Los Angeles District Attorney Gil Garcetti, a one-time death penalty supporter now backing the campaign.

Meanwhile, the cash-strapped opposition to Proposition 34, with just a few hundred thousand dollars in campaign funds raised so far, is relying on Web advertisements that offer up a new death row villain to profile every few days, highlighting victims' families and law enforcement officials who've encountered the worst killers in California. The ads thus far have included Ng and the most recent released on Monday about Tahua "Tao" Rivera, sentenced to die for the 2004 slaying of a Merced police officer.

Using what they call a "grass roots" campaign, the No on Proposition 34 leaders are also taking their show on the road. That includes a public event Tuesday in San Jose, where Santa Clara County District Attorney Jeff Rosen, San Mateo County District Attorney Steve Wagstaffe and Marc Klaas, father of murder victim Polly Klaas, will speak out against the measure.

Rooting for crime and punishment questions at tonight's town-hall Prez debate

In this post before the first debate in Denver between the Prez candidates, I correctly predicted that there would not be a single question dealing with criminal justice issues (despite the reality that a significant portion of federal government spending and a massive portion of state government spending is devoted to these big government programs).  Tonight's scheduled town-hall tussle on Long Island is probably going to follow the same script.  But I think there is at least a slim chance that one of the real people being allowed to ask real questions might be allowed to really press the candidates on the really interesting issues for sentencing fans like federal pot prohibition or mass incarceration or even the administration of the federal death penalty or perhaps state felon disenfranchisement. 

For old-times sake, I tracked down the last memorable discussion of crime and punishment in a town-hall debate.  Specifically, almost exactly 12 years ago, on October 17, 2000 to be precise, the death penalty came up during the town-hall debate between then-Governor George W. Bush and then-Vice President Al Gore.  Here are excerpts from this capital Q&A from a dozen years ago via this debate transcript:

Mr. ANDERSON:  In one of the last debates held, the subject of capital punishment came up, and in your response to the question, you seemed to overly enjoy, as a matter of fact, proud that Texas leads the the nation in execution of prisoners.  Sir, did I misread your response, and are you really, really proud of the fact that Texas is number one in executions?

Gov. BUSH:  No, I'm not proud of that. The death penalty is very serious business, Leo. It's an issue that good people obviously disagree on. I take my job seriously, and if you think I was proud of it, I think you misread me, I do.  I was sworn to uphold the laws of my state.  During the course of the campaign in 1994 I was asked, `Do you support the death penalty?' I said I did if administered fairly and justly, because I believe it saves lives, Leo. I do.  I think if it's administered swiftly, justly and fairly, it saves lives....

There have been some tough cases come across my desk.  Some of the hardest moments since I've been the governor of the state of Texas is to deal with those cases.  But my job is to ask two questions, sir: Is the person guilty of the crime, and did the person have full access to the courts of law?  And I can tell you, looking at you right now, in all cases those answers were affirmative.  I'm not proud of any record.  I'm proud of the fact that violent crime is down in the state of Texas.  I'm proud of the fact that we hold people accountable, but I'm not proud of any record, sir. I'm not....

Vice Pres. GORE:  I support the death penalty. I think that it has to be administered not only fairly, with attention to things like DNA evidence, which I think should be used in all capital cases, but also with very careful attention if, for example, somebody confesses to the crime and somebody's waiting on death row, there has to be alertness to say, 'Wait a minute, have we got the wrong guy?'  If the wrong guy is put to death, then that's a double tragedy, not only has an innocent person been executed but the real perpetrator of the crime has not been held accountable for it and in some cases may be still at large.  But I support the death penalty in the most heinous cases.

Mr. LEHRER:  Do both of you believe that the death penalty actually deters crime? Governor?

Gov. BUSH:  I do. That's the only reason to be for it.... I don't think you should support the death penalty to seek revenge. I don't think that's right.  I think the reason to support the death penalty is because it saves other people's lives.

Vice Pres. GORE:  I think it is a deterrence.  I know it's a controversial view but I do believe it's a deterrence.

Back to the present day, In this prior post and in many others, I have already detailed some of the federal criminal justice questions I would love to hear asked of the candidates this season.  Perhaps readers will join in my on-going (and seemingly futile?) debate game by adding some queries of interest  via the comments.

A few recent and older related posts: 

• Some questions I might ask during the upcoming Presidential debates
• "Crime not on presidential contest radar"
• Could Romney appeal to independents and minorities with bold crime and punishment vision?
• A Beastly articulation of my (foolish?) hope candidate Romney might embrace the Right on Crime movement
• "The GOP platform’s surprisingly progressive stance on crime"
• When and how might pot prohibition or federal pot policy enter the 2012 Prez campaign?
• Is it really true that "conservatives and liberals are increasingly united" on criminal justice reform?
• "NAACP, right-wing foes get friendly" when it comes to prison costs
• "Conservatives latch onto prison reform"

"Marijuana backers court conservatives with appeals on states’ rights, ineffective pot laws"

The title of this post is the headline of this new AP article, which includes these passages:

It’s not all hippies backing November’s marijuana legalization votes in Colorado, Oregon and Washington.  Appealing to Western individualism and a mistrust of federal government, activists have lined up some prominent conservatives, from one-time presidential hopefuls Tom Tancredo and Ron Paul to Republican-turned-Libertarian presidential candidate and former New Mexico Gov. Gary Johnson.

“This is truly a nonpartisan issue,” said Mark Slaugh, a volunteer for the Colorado initiative who is based in Colorado Springs, which has more Republicans than anywhere else in the state.  “States’ rights! States’ rights!”  Slaugh cried as he handed out flyers about the state’s pot measure outside a rally last month by Republican vice presidential candidate Paul Ryan.  Quite a few passing Republicans took the flyer....

Most Republicans still oppose legalization.  Presidential candidate Mitt Romney vows to enforce federal law.  When Ryan told a Colorado Springs TV station in September that medical marijuana was “up to Coloradans to decide,” his campaign quickly backtracked and said he agreed with Romney.

When activists make their appeal, it goes like this: States should dictate drug law. Decades of federal prohibition have failed where personal responsibility and old-fashioned parenting will succeed.  Politicians back East have no business dictating what the states do....

Tancredo launched a radio ad this week in which he compares marijuana prohibition to alcohol prohibition as a “failed government program” that, in this case, “steers Colorado money to criminals in Mexico.”

“Proponents of big government have duped us into supporting a similar prohibition of marijuana — even though it can be used safely and responsibly by adults,” Tancredo said.

Pot supporters have lined up other surprising allies this year, even as many Democrats oppose the measures.  Conservative stalwart Pat Robertson, for example, said marijuana should be legal.

In Washington state, Republican U.S. Senate hopeful Michael Baumgartner is running a longshot bid to unseat Democratic U.S. Sen. Maria Cantwell, who opposes it.  “It’s taking a different approach to a very expensive drug war, and potentially a better approach,” he said.

In Oregon, at least one Republican state Senate candidate backs legalization. Cliff Hutchison reasoned that legalizing pot would “cut wasteful government spending on corrections and reduce drug gang violence.”...

Pro-pot conservatives have counterparts on the other side — Democrats who say pot shouldn’t be legal without a doctor’s recommendation.  Democratic governors in Colorado and Washington oppose legalization.  Oregon’s Democratic governor has not taken a stand. President Barack Obama’s administration has shut down medical marijuana dispensaries in California and Colorado.

Republican Colorado state Sen. Steve King is a frequent critic of Colorado’s medical marijuana law.  Conservatives abhor government, but they also fear legalization would increase children’s drug use, he said. “It’s pretty easy to come in and say, ‘Let’s decrease government.’ And I’m all for that. This just isn’t the place to start,” King said. “We have a next generation to protect,” he said.

Will there be a "constitutional showdown" if a state legalizes pot? And would that be so bad?

The question in the title of this post are prompted by this new piece at the Huffington Post, which is headlined "States Legalizing Marijuana Will Violate Federal Law, Trigger Constitutional Showdown: DEA, Drug Czars." The piece starts this way:

On a Monday teleconference call, former Drug Enforcement Agency administrators and directors of the Office of National Drug Control Policy voiced a strong reminder to the U.S. Department of Justice that even if voters in Colorado, Oregon and Washington pass ballot measures to legalize marijuana use for adults and tax its sale, the legalization of marijuana still violates federal law and the passage of these measures could trigger a "Constitutional showdown."

The goal of the call was clearly to put more pressure on Attorney General Eric Holder to make a public statement in opposition to these measures. With less than 30 days before Election Day, the DOJ has yet to announce its enforcement intentions regarding the ballot measures that, if passed, could end marijuana prohibition in each state.

"Next month in Colorado, Oregon and Washington states, voters will vote on legalizing marijuana," Peter Bensinger, the moderater of the call and former administrator of DEA during Ford, Carter and Reagan administrations, began the call. "Federal law, the U.S. Constitution and Supreme Court decisions say that this cannot be done because federal law preempts state law."

Bensinger added: "And there is a bigger danger that touches every one of us -- legalizing marijuana threatens public health and safety. In states that have legalized medical marijuana, drug driving arrests, accidents, and drug overdose deaths have skyrocketed. Drug treatment admissions are up and the number of teens using this gateway drug is up dramatically."

Bensinger was joined by a host of speakers including Bill Bennet and John Walters, former directors of the While House Office of National Drug Control Policy; Chief Richard Beary of the International Association of Chiefs of Police (IACP); Dr. Robert L. DuPont, founding director of the National Institute on Drug Abuse (NIDA) and who was also representing the American Society of Addiction Medicine (ASAM) and several others.

The position being pushed here by past and current drug warriors seems to have a little bit of a "chicken little" sky-is-falling quality to it.  Nevertheless, the apparent urgency of these respected voices confirms my strong belief that this is a topic very worthy of discourse on the Presidential campaign trail.  I am cautiously (and perhaps foolishly) optimistic that the next Prez debate's town hall format has the best chance to bring these issues into national discourse.  But even if it does not, I hope some members of the media might follow-up on these matters in interviews with both of the presidential contenders.

Some recent and older related posts:

• When and how might pot prohibition or federal pot policy enter the 2012 Prez campaign?
• VP candidate Paul Ryan says states should have right to legalize medical marijuana
• Is it really "shocking" that President Obama has not spoken out concerning state criminal justice reform proposals?
• "Bummer: Barack Obama turns out to be just another drug warrior"
• "Prominent Republicans in Washington state, Colorado endorse legal pot"
• New astute articles on the modern realities of pot politics, policies and practices
• Prominent conservative Tom Tancredo supporting marijuana legalization initiative in Colorado
• "Medical Marijuana in Colorado and the Future of Marijuana Regulation in the United States"

Noting the intriguingly unpredictable politics around Washington's marijuana initiative

This New York Times article, headlined "Marijuana Referendum Divides Both Sides," provides an intriguing reports on the political debates in Washington state over its ballot initiative to repeal the state's pot prohibition. Here is how the piece starts:

Most efforts to legalize marijuana possession have generally run aground in the face of unified opposition. Mothers Against Drunk Driving led the charge in helping to defeat a ballot measure in California in 2010. Law enforcement groups, not too surprisingly, have also been largely opposed in the past.

But in Washington State, as a measure that would legalize possession of small amounts of marijuana heads toward a vote next month, the opposition forces have been divided, raising hopes by marijuana advocates of a breakthrough. A poll conducted last month by Elway Research showed that 50 percent of voters either definitely or probably were in favor of legalizing the possession of an ounce of marijuana or less.

Some former law enforcement officials have appeared in television ads in favor of the legalization. Safety concerns about drugged driving have been muted by a provision of the measure, called Initiative 502, that would create a standard to measure impairment. A promised flood of tax money to drug and alcohol treatment programs from legal marijuana sales has also kept some antidrug groups on the sidelines.

But if opponents are in disarray or disagreement, supporters of legalization are as well. And that is making the outcome hard to predict, both sides say. In fact, some of the most vehement opposition to the initiative is coming from what might seem the least likely corner of all: medical marijuana users. Organized through a group called No on I-502, they say the plan, especially the new legal standard of impairment while driving, creates a new legal risk for regular users because THC, marijuana’s primary psychoactive ingredient, can stay in the bloodstream for days after consumption, and thus be measurable by a blood test whether a person is impaired or not.

Some recent and older related posts:

• New report from Washington state indicates over 12,000 yearly marijuana arrests over last decade
• "Prominent Republicans in Washington state, Colorado endorse legal pot"
• VP candidate Paul Ryan says states should have right to legalize medical marijuana
• New astute articles on the modern realities of pot politics, policies and practices
• Prominent conservative Tom Tancredo supporting marijuana legalization initiative in Colorado
• "Medical Marijuana in Colorado and the Future of Marijuana Regulation in the United States"

Is there any chance for any crime and punishment discussion at tonight's VP debate?

In this post before last week's dog-fight in Denver between the Prez candidates, I correctly predicted that there would no be a single question focused on criminal justice issues (despite the reality that a significant portion of federal government spending and a massive portion of state government spending is devoted to these big government programs).  Tonight's scheduled contest in Kentucky between the VP candidates seems pretty sure to follow the same script.  (That said, a variation of Murphy's Law might suggest that there will be lots of crime and punishment talk because I will not be able to watch the debate while traveling this evening out to California to participate in this great event at Loyola Law School.)

In this prior post and in many others, I have already detailed some of the federal criminal justice questions I would love to hear asked of all the candidates this season.  Perhaps readers will join in my (futile?) debate game by adding some queries of interest on these topics via the comments.

A few recent and older related posts: 

• Some questions I might ask during the upcoming Presidential debates
• "Crime not on presidential contest radar"
• Could Romney appeal to independents and minorities with bold crime and punishment vision?
• A Beastly articulation of my (foolish?) hope candidate Romney might embrace the Right on Crime movement
• "The GOP platform’s surprisingly progressive stance on crime"
• When and how might pot prohibition or federal pot policy enter the 2012 Prez campaign?
• Is it really true that "conservatives and liberals are increasingly united" on criminal justice reform?
• "The Right Sentencing: Conservatives backtrack on long prison sentences"
• "NAACP, right-wing foes get friendly" when it comes to prison costs
• "Conservatives latch onto prison reform"

Is it really "shocking" that President Obama has not spoken out concerning state criminal justice reform proposals?

The question in the title of this post is prompted by a comment in this new Fox News piece, which is headlined "High times: 3 states to vote on recreational marijuana use."  Here are excerpts:

Advocates of legalizing marijuana for recreational use may be closing in on their first statewide victory. Voter initiatives that would legalize up to an ounce of pot will be on the ballot in three states in November: Oregon, Colorado and Washington State. Polling shows the measures leading in Washington and Colorado with at least 50 percent support.

“If Washington or Colorado wins in November, and both of them have a good chance to do so, it is going to be transformative in the way we think about marijuana policy in this country and even outside,” says longtime legalization advocate Ethan Nadelmann of the Drug Policy Alliance....

President George Bush’s drug czar, John Walters, can’t understand why President Obama is not using his bully pulpit.  “I think it’s shocking that Attorney General Holder, the Director Kerlikowski, but most of all the president of the United States, can’t talk about this,” says Walters.  “It’s about health, it’s about safety, it’s about the future of the country.”

Meantime, Initiative 502 in Washington State keeps racking up endorsements. Most elected leaders in Seattle support the measure, including the current sheriff and his opponent in the upcoming election. Former U.S. Attorney John McKay is one of its sponsors. But the most stunning endorsement came from the Children’s Alliance, an umbrella organization for 100 child welfare groups.

Jon Gould, Deputy Director of the Children’s Alliance, says marijuana laws are being enforced unevenly and that hurts minorities and the poor. “If those kids’ parents are shut out of housing, shut out of employment, shut out of education opportunities, we’re not helping those kids,” says Gould.

Legalization opponents argue very few people are locked up for marijuana possession. A survey by the Bureau of Justice Statistics showed that .07% of all state inmates were busted for marijuana possession only. “We need to understand that drugs and gangs go hand in hand,” says Paul Chabot, who advised Presidents Clinton and Bush on drug policy. “They destroy communities. What we have to do is work keeping people off this stuff, not liberalizing policies.”

Legal or not, young people would still be barred from smoking pot.  And critics argue more kids would try it, something the administration has always been against.  But so far this election year, instead of using the power of the office, that message has gone up in smoke.

Regular readers know I share John Walters hope that President Obama, as well as wanna-be President Romney, will address marijuana policy on the campaign trail and in the debates. But I hardly think it is "shocking" that the President has not opined on the proposals to legalize marijuana at the state level in three states, just as I do not think it is "shocking" that he has not addressed California's big criminal justice initiatives or other state-level reforms that may or may not impact federal criminal justice enforcement priorities.

Regular readers likely know that I am following the politics surrounding drug policy reform closely because I have a hard time connecting conservative talking points about freedom, states' rights and nanny-state over-regulation with the categorical opposition to state-by-state reconsideration of absolute pot prohibition.  Given that Republican VP candidate Paul Ryan has indicated that he believes states should be free to develop their own medical marijuana laws while other Republicans have endorsed pot legalization in Colorado and Washington, I am surprised and somewhat disappointed that Fox News thinks it is "fair and balanced" to assail President Obama on this front, especially given how hard his US Attorneys are going after medical marijuana facilities throughout the west.

Some recent and older related posts:

• When and how might pot prohibition or federal pot policy enter the 2012 Prez campaign?
• Prominent Republicans in Washington state, Colorado endorse legal pot"
• VP candidate Paul Ryan says states should have right to legalize medical marijuana
• Prominent conservative Tom Tancredo supporting marijuana legalization initiative in Colorado
• "Drugs, Dignity and Danger: Human Dignity as a Constitutional Constraint to Limit Overcriminalization"
• New astute articles on the modern realities of pot politics, policies and practices
• Colorado the new "ground zero" for debates over pot prohibitions and policies
• Latest Colorado poll showing majority support for marijuana legalization ballot initiative
• "Medical Marijuana in Colorado and the Future of Marijuana Regulation in the United States"
• NAACP gets behind marijuana legalization inititative in Colorado
• A Beastly articulation of my (foolish?) hope candidate Romney might embrace the Right on Crime movement
• Marijuana legalization advocate getting warm reception at CPAC
• "Bummer: Barack Obama turns out to be just another drug warrior"

"Prominent Republicans in Washington state, Colorado endorse legal pot"

The title of this post is the headline of this notable new Reuters piece.  Here are excerpts:

Ballot measures to legalize marijuana in Washington state and Colorado gained support this week from a pair of prominent Republicans -- U.S. Senate candidate Michael Baumgartner and former Representative Tom Tancredo -- who could help sway conservative voters.

No state has ever legalized marijuana for recreational use. The federal government considers it an illegal drug, but 17 states and the District of Columbia allow it as medicine.

Baumgartner, the Republican challenger to Washington state's Democratic Senator Maria Cantwell, said in a phone interview the state initiative, which would allow the sale of marijuana to people 21 and older at state-sanctioned stores, is a "thoughtful way forward."...

Tancredo, who served five terms in the House of Representatives from 1999 to 2009, this week endorsed the legalization campaign in Colorado.  He argued government should not interfere with people's choice to use pot.

In Oregon, a third state where voters this November will decide whether to allow recreational use of pot, the campaign has struggled to find big name Republican supporters.

Legalization opponent Kevin Sabet, a former adviser to the Obama administration's drug policy director, disputed the argument of many libertarians that government should not interfere in pot use by people.  "The libertarian argument is fundamentally flawed because drug use does not affect just the individual, it affects healthcare costs, criminal justice costs that we see with a legal drug like alcohol and costs to our highway safety," Sabet said.

Some recent and older related posts:

• Prominent conservative Tom Tancredo supporting marijuana legalization initiative in Colorado
• When and how might pot prohibition or federal pot policy enter the 2012 Prez campaign?
• VP candidate Paul Ryan says states should have right to legalize medical marijuana
• "Drugs, Dignity and Danger: Human Dignity as a Constitutional Constraint to Limit Overcriminalization"
• New astute articles on the modern realities of pot politics, policies and practices
• Colorado the new "ground zero" for debates over pot prohibitions and policies
• Latest Colorado poll showing majority support for marijuana legalization ballot initiative
• "Medical Marijuana in Colorado and the Future of Marijuana Regulation in the United States"
• NAACP gets behind marijuana legalization inititative in Colorado
• A Beastly articulation of my (foolish?) hope candidate Romney might embrace the Right on Crime movement
• Marijuana legalization advocate getting warm reception at CPAC
• "Bummer: Barack Obama turns out to be just another drug warrior"

Gov Jerry Brown's notable (wise? unprincipled? chicken$%#&?) evolution concerning California's death penalty

Today's Sacramento Bee has this intriguing front-page article headlined "Jerry Brown sidesteps death penalty discussion as California voters face choice." Here are excerpts:

Two years ago, in the waning days of the gubernatorial campaign, Jerry Brown was asked why, given his moral reservations about the death penalty, he wouldn't try to stop it anymore.  As a young man, Brown had lobbied his father, then-Gov. Pat Brown, to stay a man's execution, and he vetoed death penalty legislation when he was governor before.

"I don't know," Brown said on an airplane between campaign rallies in the Central Valley. "You want to reinvent the world. But we have the world.  And this is a matter that's been before the voters … been before the Legislature.  At this point in time, it's relatively settled."

It may still be.  Though the margin is slight, a plurality of likely voters opposes a Nov. 6 ballot measure to repeal the death penalty, according to the Field Poll.  Nevertheless, the measure, Proposition 34, is on the ballot -- and Brown wants no part of it.

The Democratic governor has declined to say how he will vote on the death penalty or other ballot measures, and he is not expected to do so before Election Day.  He said is focused solely on his own initiative to raise the state sales tax and income taxes on California's highest earners.

Brown's careful distance from abolishing the death penalty, a cause he once championed, reflects the caution of a governor who has grown more sensitive to the limitations and political hazards of his office than when he was governor before, from 1975 to 1983....

Brown was 21 when, one night in 1960, he called his father to urge a temporary stay of execution for convicted rapist Caryl Chessman.  Chessman was ultimately executed, but not before his father granted the temporary stay.  The decision was unpopular, and Pat Brown later said his political career suffered badly for it.

Seven years later, when Aaron Mitchell was executed at San Quentin State Prison, Jerry Brown participated in a vigil outside the prison, and 10 years after that, Brown vetoed legislation -- overridden by the Legislature -- to reinstate the death penalty.

He called it "a matter of conscience," a sentiment he expanded upon when he was asked while running for president in 1992 if his opposition to the death penalty was absolute. "Yes," Brown said.  "When someone is contained in a cage, then to bureaucratically, coldbloodedly snuff out their life, whether by poison or by electrocution or by gas, it seems, it doesn't seem right to me."

Peter Finnegan, a longtime friend of Brown's and his debate partner in high school, recalled holding candles outside San Quentin with Brown when they were young men.  They don't talk about the death penalty anymore.  "He just doesn't want to talk about it," said Finnegan, now a retired lobbyist and political activist. "You get nowhere talking about it, really, and it's kind of behind him, and everyone knows where he is, and that's that." When Brown was governor before, Finnegan recalled, "we'd sit around until 2 in the morning (discussing) this stuff." Now, Finnegan said, "he's just more focused … . I just think he's so much more mature."...

His position has been made awkward, however, by the presence of the death penalty initiative.  One day in April, Brown called it a "very, very important issue" and said he was glad the measure would be on the ballot, before saying that afternoon that his commitment to enforcing the death penalty was unwavering.  "I will carry out the law," Brown said, "without fear or failure and with fidelity to the will of the people."

A governor's endorsement can matter in an initiative campaign, but less so in one that involves a high-profile matter such as the death penalty, about which voters typically hold highly emotional, pre-existing beliefs.  Likely voters oppose Proposition 34, the measure to replace the death penalty with life without the possibility of parole, 45 percent to 42 percent, according to a recent Field Poll.

As suggested by the title of this post, I am interested in hearing reader views as to the right adjective to describe Gov Brown's death penalty evolution. I am inclined to pick the adjective "chickenshit" because I consider Brown's effort to stay mute on such a significant and symbolic aspect of the state's criminal justice system to be an act of profound political and personal cowardice.  Moreover, I think it would be pretty easy for Brown and his advisers to develop a politically astute and personally satisfying statement on this topic. That statement could read something like:

"Though I have long been morally opposed to the death penalty, I deeply respect those with contrary moral views, and I am personally and professionally committed to vigorous enforcement of any and all duly enacted criminal justice laws reflecting the will of the people in our state.  I am thrilled that this important issue is garnering renewed attention and that our citizens will now have the opportunity to express their current position on this matter directly via the ballot box.  Based on my long-standing moral beliefs, I expect to vote for Prop. 34, and I am especially excited to learn about the views of all fellow Californians on Prop 34 come November 6."

Some questions I might ask during the upcoming Presidential debates

As this recent post noted, crime and punishment — and especially federal crime and punishment — does not seem a big concern for the electorate this campaign season.  Nevertheless, there are no shortage of timely and important sentencing law and policy questions that could usefully be posed at the big debate tonight in Denver to the two Harvard Law School graduates seeking to be the US President for the next four years.

I fear there will not be a single question focused on criminal justice issues in tonight's debate, despite the reality that a significant portion of federal government spending and a massive portion of state government spending is devoted to these big government programs.  But, in the spirit of the evening, I must articulate some serious questions on serious federal criminal justice topics that might provide an interesting window into the candidates' views:

• Do you support the bill introduced by Ron Paul and Barney Frank to get the federal government out of the marijuana regulation business (basics here)?  Would you sign or veto such a bill as president if it came to your desk?

• If Colorado or another state were to fully legalize (and heavily tax) local marijuana production and sales via  a widely-supported voter initiative, what kind of guidance might you issue via the Justice Department to US Attorneys within that state concerning the enforcement of federal criminal law prohibiting any and all marijuana production and sale?  

• Do you consider the modern "War on Drugs" — a federal government program started by Richard Nixon and increasingly funded at the federal level by every President since — to be an example of a failed government program or an example of government success?

• According to a Pew Center report in 2009, state criminal correction spending has quadrupled in the past two decades, outpacing budget growth in education and transportation (basics here).   Meanwhile, the Justice Department has written repeatedly to the US Sentencing Commission about federal prison spending and overcrowding (see here and here), and the GAO just last month reported that "the growth in the federal inmate population has negatively affected inmates, staff, and infrastructure" (see report here).  Are you troubled by these fiscal and practical challenges now presented by modern incarceration levels and spending at the federal level and in the states?

Regular readers likely know that I could go on and on with these kinds of wonkish questions — concerning the application of the federal death penalty or the problems of federal prosecutorial misconduct or the importance of federal clemency authority — but at this point I will bring this pre-debate post to a close and welcome comments from readers on this front (which can, of course, be posted before during or after tonight's debate).

A few recent and older related posts: 

• "Crime not on presidential contest radar"
• Could Romney appeal to independents and minorities with bold crime and punishment vision?
• A Beastly articulation of my (foolish?) hope candidate Romney might embrace the Right on Crime movement
• "The GOP platform’s surprisingly progressive stance on crime"
• When and how might pot prohibition or federal pot policy enter the 2012 Prez campaign?
• "Colorado marijuana legalization among crucial issues in state"
• Is it really true that "conservatives and liberals are increasingly united" on criminal justice reform?

"Crime not on presidential contest radar"

The title of this post is the headline of this notable new USA Today piece, which includes these excerpts:

Presidents and lesser politicians have been delivered to victory more often than not for taking tough stands on crime. Yet during a year punctuated by mass shootings at a Colorado movie theater and temple in Wisconsin, crime has all but vanished from public discussion this campaign season.

In a presidential election cycle dominated by concerns for a faltering economy and unemployment, crime rated a forgettable asterisk earlier this month in a Gallup Poll, representing less than 1% of Americans who believed it was the nation's most pressing problem. "When the economy is as big a problem as it is, it kind of squashes out the others," said Frank Newport, Gallup's editor in chief....

According to polling data..., 2012 represents just one more presidential election in which the often-emotional issue of crime has ranked near the bottom of the public agenda. The last time crime rated as the top concern of the American public was in 1996, according to Gallup.

"The most important responsibility of an elected official is to provide for the safety of the people they represent, and we haven't heard much talk about that," said Jim Pasco, the FOP's executive director. "When there is the kind of violence that we have seen this summer, you do expect there to be a discussion about it," he said. "But it seems like it is the last thing on the public agenda."

Chuck Wexler, executive director of the law enforcement think tank Police Executive Research Forum, said the apparent lack of attention is "a sign of the times."

"Twenty years ago, the homicide rate was double what it is today," he said. "If we compare ourselves against ourselves, crime has declined fairly dramatically.  But if we compare ourselves to countries like the United Kingdom, that's another story." There were more than 600 murders in Great Britain last year, compared to more than 13,000 in the U.S. "The gun issue is radioactive in this country for both Democrats and Republicans," Wexler said. "No one nationally has spoken about it. It's not even on the radar screen."

Long-time readers likely recall my laments that national crime and punishment issues failed to garner any significant attention in the 2004 or 2008 campaigns. Rather than curse this criminal justice darkness, I hope this weekend to do a post with timely federal crime and punishment questions that could be interesting and revealing during next week's first big presidential debate. In the meantime, I wonder if readers are inclined to complain or cheer the failure of any significant national politicians to give any real attention to these issues.

Some recent and older related posts: 

• Could Romney appeal to independents and minorities with bold crime and punishment vision?
• A Beastly articulation of my (foolish?) hope candidate Romney might embrace the Right on Crime movement
• "The GOP platform’s surprisingly progressive stance on crime"
• When and how might pot prohibition or federal pot policy enter the 2012 Prez campaign?

New poll suggests death penalty repeal has a chance on California ballot

This new San Francisco Chronicle piece, headlined "Death penalty repeal close in poll," reports that the latest polling shows a close contest for the California ballot initiative calling for repeal of the state's death penalty. Here are the details:

California voters are closely divided on a November ballot measure to repeal the state's death penalty law, with significant differences in support among regions and age groups, a new Field Poll reports.

The survey found that Proposition 34, which would make life in prison without parole the maximum punishment for murder, was opposed by 45 percent of likely voters and favored by 42 percent, with 13 percent undecided. The results amounted to a statistical tie, since the poll's margin of error was 4.3 percentage points.

The poll, released Tuesday, was conducted Sept. 6-18 among a random sample of 468 voters....

Prop. 34 will be California's first vote on capital punishment since 1978, when a 71 percent majority approved expansion of a death penalty law that had been passed the previous year over Gov. Jerry Brown's veto.

Backers of the Nov. 6 measure are focusing on the economic impact of the death penalty, citing studies that found the state spends as much as $184 million a year more than it would if the maximum sentence were life without parole. Prop. 34 would transfer $100 million over four years to law enforcement programs to solve murder and rape cases.

The new poll found that Prop. 34 was supported by Democrats, 50-37 percent, and even more strongly by unaffiliated and third-party voters, 54-33 percent, but opposed 23-65 percent by Republicans.

Residents of coastal counties favored the measure 45-41 percent, within the poll's margin of error, but inland residents opposed it 34-55 percent. The Bay Area provided the strongest regional support, 57-35 percent.

Men were evenly split, while women narrowly opposed the measure. Younger voters were about equally divided, but those ages 50 to 64 opposed Prop. 34 by 39 to 51 percent, and voters over 65 opposed it 38 to 46 percent.

Recent related posts:

• If money can really buy elections, the death penalty will be dead in California
• If major newspaper editorials matter, the death penalty will be dead in California
• New poll numbers (and polling techniques) surrounding California DP repeal initiative

Should Prez Obama become much more aggressive on judicial appointments if he gets a second term? How exactly?

The question in the title of this post is prompted by this commentary from Professor Pam Karlan in the Boston Review, which carries the headline "Empty Benches." Here are excerpts:

Recent Republican administrations have pursued a judicial nomination strategy that seeks to appoint young, deeply committed conservative lawyers to the federal district courts and courts of appeals.  Republican activists pressed judicial nominations as a priority, and conservative presidents and senators worked hard to get these nominees confirmed.  The result is not just a deep farm team of potential Supreme Court nominees, but also a host of conservative judges inscribing their views of constitutional law and their interpretations of statutes in thousands of cases that never reach the Supreme Court.  If their cases are appealed to the top, then those judges’ opinions shape the terms of the debate in the high court.

By contrast, the Obama administration has done relatively little to bring the courts back into balance.  When Obama was sworn into office, there were 55 vacancies on the federal bench.  There are now more than 75, and Obama will likely “become the first president since Reagan, and possibly much earlier, to finish his first term with more vacancies than he inherited,” according to Alliance for Justice. (Vacancies weren’t tracked before the Reagan years.)

To be sure, much of the problem is conservative obstructionism.  Several of the president’s most prominent nominees have been filibustered.  Many others have been victims of “blue slips”—an internal Senate procedure that allows either senator from a nominee’s home state essentially to block a nomination. Even candidates who ultimately are confirmed by overwhelming votes have faced a series of procedural roadblocks. And the prospect of having to put their careers on hold has probably dissuaded many qualified candidates even from seeking nominations.

But conservative obstruction is not the only problem.  During the period when Democrats held a filibuster-proof senate, the administration moved far too slowly to make nominations.  Granted, it was a busy time, with the economic crisis, two Supreme Court openings, and health care reform occupying the administration’s attention.  But the delay also reflects a sense that judicial appointments are less important than other policy levers and that the president’s base does not really care about the issue.

Moreover, while the current administration has achieved an admirable degree of gender and racial diversity among its picks (nominating roughly two times more women and persons of color, by percentage, than the preceding administration had), its court of appeals nominees are generally older than their conservative counterparts.  And very few of them have backgrounds either as public-interest lawyers for liberal or progressive causes or as scholars who have responded to conservative legal thought.

The administration’s inability to fill vacant seats on the federal bench has both immediate and long-term effects.  Right now, more than half of Americans live in jurisdictions facing what the Administrative Office of the U.S. Courts calls “judicial emergencies”: their empty benches can’t handle heavy caseloads. Because criminal prosecutions take priority, plaintiffs with civil claims — workers, victims of government misconduct, consumers, and others — face severe delays in vindicating their rights.

In the longer term, vacancies accrued during a liberal-leaning administration that remain open for succeeding conservative administrations to fill will ensure that courts continue to skew to the right, meaning that progressive legislation and regulations will be undercut when it comes time to enforce them.  The lack of a vigorous judicial response to conservative versions of originalism and “strict construction” — which often means little more than a cramped reading of broadly worded statutes and constitutional provisions — will bias popular discussion and debate.

Professor Karlan's answer to the questions in the title of this post seem clear:  via this commentary, she is essentially urging an Obama Administration to make a concentrated effort to "appoint young, deeply committed" liberal lawyers with a background as "public-interest lawyers for liberal or progressive causes or as scholars who have responded to conservative legal thought." (Notably, Karlan's own professional background fits her description, but at age 53 I wonder if she even considers her "generally older" than her own view of the ideal Obama nominee.)

I share Professor Karlan's view that President Obama and others in his administration probably ought to give more attention and emphasis to judicial nominees, especially given the large number of judicial emergencies that can negatively impact the administration of justice in so many ways.  That said, I am more inclined to praise the Obama team's efforts to date, particularly for its ability to bring much greater gender and racial diversity to the federal bench.  (My chief disappointment on this front has been Obama's apparent eagerness to elevate persons who are already judges rather than often seeking to bring in bold new perspectives into the judiciary.)

I wonder if readers have thoughts on this front (which, of course, impacts sentencing law, policy and practice in many ways).  In particular, I wonder if anyone would urge the Obama Administration to start gearing up for a massive post-election judicial appointment push soon if Obama is elected to a second term.  I do not know if any re-elected president has ever put forward a huge bunch of judicial nominations in the early days of a second term (or even in the closing period of his first term when a lame duck senate could perhaps be prodded into some confirmation activity).   But it wold be quite an impressive spectacle if the Obama Administration could put up candidates for every open judgeship not  long after the election.  (The same might be said, for that matter, about a possible Romney Administration.)

Following the money surrounding medical marijuana initiative in Arkansas

This local story, headlined "Financial side of medical marijuana on ballot in Arkansas," provides a detailed account of investments on the competing sides in the Arkansas ballot initiative over medical marijuana. Here are the basic detail:

Thousands of dollars has been spent to put the Arkansas Medical Marijuana Act on the ballot and now with a lawsuit against the state of Arkansas to remove the act, thousands more will be spent to fight it.

It's an issue that is getting individuals and national organizations to open their checkbooks. "It's been a full on campaign for a little over a year now," says Chris Kell, spokesperson for Arkansans for Compassionate Care.  It is a non-profit campaign instrumental in putting the Arkansas Medical Marijuana Act on the ballot.

"We've raised a lot of money from Arkansans from very generous support financially from Marijuana Policy Project," says Kell.  The Marijuana Policy Project is a national non-profit agency that works to reform marijuana laws.  So far, they've spent more than $250,000 to get medical marijuana legalized in Arkansas.

"We are entirely a member supported organization.  We have over 50,000 dues paying members and basically when we go into these campaigns, we like to focus on whatever we can do to get the issue in front of the voters.  In this case, paying for petition gatherers and public education," says Morgan Fox with MPP.

"Our funding comes from individuals and churches right here in Arkansas and that's what I would expect to be the case with this campaign as well," says Jerry Cox, Director of the Family Council Action Committee.  It is a group formed by four Arkansas non-profit agencies (Family's First, The Arkansas Family Coalition, The Arkansas Faith and Ethics Council and Family Council) fighting to remove the Arkansas Medical Marijuana Act from the ballot. They recently filed a lawsuit against the state of Arkansas saying the ballot title did not adequately explain the measure.

Cox says fundraising has just begun and only a few thousand dollars is being used to fight the measure right now but he expects that number to change.  "I would expect our funding to come from right here in Arkansas and it should because the people here in Arkansas are the ones most affected if this measure passes," says Cox.

Recent related post:

• Arkansas voters likely to have opportunity to vote on medical marijuana in 2012

"The GOP platform’s surprisingly progressive stance on crime"

The title of this post is the headline of this astute recent Washington Post piece.  Here are excerpts:

Four years ago, Republicans devoted a section in their platform to the War on Drugs, lamenting the “human toll of drug addiction and abuse” and vowing to “continue the fight against producers, traffickers, and distributor of illegal substances.”

That plank is conspicuously missing from the GOP platform this year.  The fight against illegal drugs is only mentioned in passing, mostly with reference to drug cartels and the ban on using controlled substances for doctor-assisted suicide.

Policy experts agree that the omission is significant.  “This is less a ‘tough on crime’ document than you would have expected.  And leaving out the War on Drugs [is] quite astounding,” says Mark Kleiman, a crime policy expert and professor at UCLA.  “It’s a bit more of a libertarian attitude,” says Marc Levin, who runs a conservative criminal justice reform project called “Right on Crime” that’s attracted the support of Newt Gingrich and Grover Norquist.

What’s more, the 2012 platform includes new provisions that emphasize the importance of rehabilitation and re-entry programs to help ex-prisoners integrate back into society — using language that Kleiman describes as “a lot less ‘lock ‘em up and throw away the key.’”

“While getting criminals off the street is essential, more attention must be paid to the process of restoring those individuals to the community,” the platform says.  “Prisons should do more than punish; they should attempt to rehabilitate and institute proven prisoner reentry systems to reduce recidivism and future victimization.”  The document also criticizes the “overcriminalization of behavior,” though it doesn’t elaborate on the point much further.

Both Kleiman and Levin believe it’s partly the outgrowth of a prison-reform push on the part of GOP governors whose state budgets have been saddled with high incarceration expenses.  In recent months, Pennsylvania Gov. Tom Corbett, Ohio Gov. John Kasich, and Gov. Chris Christie have embraced crime reform legislation to support the kind of rehabilitation programs that the GOP platform now advocates, with some also reducing jail time for non-violent offenders....

To be sure, there are still some aggressively “law-and-order” provisions in the platform, some of which go farther than the 2008 version.  The previous platform called for mandatory sentences for “gang conspiracy crimes, violent or sexual offenses against children, rape, and assaults resulting in serious bodily injury.”  This year, the provision has been expanded to include all “gang crimes, repeat drug dealers, robbery, and murder.”

But overall, the platform reveals a notable policy shift for the GOP, although it’s hasn’t been one that either side has mentioned much in this year’s election.

Some recent and older related posts:

• Reform records notable (though not so far noted) at Republican National Convention
• Could Romney appeal to independents and minorities with bold crime and punishment vision?
• A Beastly articulation of my (foolish?) hope candidate Romney might embrace the Right on Crime movement
• Ohio's Republican legislature, prodded by Republican gov, enacts major felon reentry reforms
• "The Right Sentencing: Conservatives backtrack on long prison sentences"
• Is it really true that "conservatives and liberals are increasingly united" on criminal justice reform?
• "Right on Crime: The Conservative Case for Reform" officially launches
• "NAACP, right-wing foes get friendly" when it comes to prison costs
• "Conservatives latch onto prison reform"

Reform records notable (though not so far noted) at Republican National Convention

I listened to most of the major speeches during the first night of the Republican National Convention; not surprisingly, I heard no mention of crime and punishment issues.  But that does not mean RNC speakers lack notable records on crime and punishment issues, as this post from FAMM Florida Project Director Greg Newburn highlights:

The Republican National Committee's list of speakers for the GOP convention ... [includes many speakers who have] embraced the “Smart on Crime” model ..., and in the process have demolished the tired idea that conservatives aren’t open to common-sense criminal justice reform.

Take Former Arkansas Governor Mike Huckabee, who could never be confused with a liberal.  He has argued that “we have not been very successful in incarcerating our way out of the drug problem.  We’ve created a bigger problem.  Our prisons are teeming with people who don’t need to be incarcerated as full-time inmates . . . I’m not soft on crime. Crime needs to be punished, but realistically, and justly.”...

Ohio Governor John Kasich ... has a lifetime rating of 88% with the American Conservative Union.  Governor Kasich made criminal justice reform a priority of his administration, and last year he signed a reform bill designed to “send low-level nonviolent felons to rehabilitation facilities in lieu of prison, put a credit-earned system in place, and adjust prison sentences for drug and petty theft offenses.  The package was proposed as a means to save money, reduce recidivism, and ease overcrowding.”...

Another speaker, Former Florida Governor Jeb Bush, recently joined Right on Crime, a group of conservative heavyweights that supports criminal justice reform (including mandatory minimum sentencing reform) and includes Grover Norquist, Newt Gingrich, and Ed Meese.  Governor Bush said of the effort, “States across the country, including Florida, are proving that policies based on these sound conservative principles will reduce crime and its cost to taxpayers.”

Oklahoma Governor Mary Fallin worked with Right on Crime, the American Legislative Exchange Council, and Republican legislators to craft a comprehensive Justice Reinvestment bill that included sentencing reforms and is projected to save her state millions of dollars.  On signing the bill, Governor Fallin said, “[I]n addition to saving tax dollars, [community sentencing options ] will help nonviolent offenders, many of whom have substance abuse problems, to receive treatment and safely get back into their communities.”

Of all the speakers at the convention, Senator Rand Paul might be the most vocal critic of mandatory minimum sentencing.  Not only has Senator Paul blocked federal drug legislation because it contained mandatory minimums, he’s said on the record that “On mandatory minimums, I don’t think teenagers accused of possessing drugs should get twenty years in prison.  I’ve fought to get rid of this.”

Perhaps most notably, New Jersey Governor Chris Christie said recently that “[t]he war on drugs, while well-intentioned, has been a failure.”  Christie signed reform legislation designed to reduce New Jersey’s reliance on incarceration in drug cases, and made the case that such reforms go beyond saving money:  “If you're pro-life, as I am, you can't be pro-life just in the womb,” he said. “Every life is precious and every one of God's creatures can be redeemed, but they won't if we ignore them.”

Across the country, conservatives understand that criminal justice systems should be subject to the same analysis as every other area of public policy.  They realize we spend far too much on incarceration and receive far too little in return.  Thankfully, some of the GOP’s “brightest stars” have made criminal justice reform a part of governing and leading “effectively and admirably.” It’s good to see the Republican Party not only embracing such reforms, but also rewarding the conservative leaders in criminal justice reform with a chance to share their views at the convention.

Some recent and older related posts:

• Could Romney appeal to independents and minorities with bold crime and punishment vision?
• A Beastly articulation of my (foolish?) hope candidate Romney might embrace the Right on Crime movement
• Marijuana legalization advocate getting warm reception at CPAC
• Ohio's Republican legislature, prodded by Republican gov, enacts major felon reentry reforms
• "The Right Sentencing: Conservatives backtrack on long prison sentences"
• Is it really true that "conservatives and liberals are increasingly united" on criminal justice reform?
• "Right on Crime: The Conservative Case for Reform" officially launches
• "NAACP, right-wing foes get friendly" when it comes to prison costs
• "Conservatives latch onto prison reform"

"Colorado marijuana legalization among crucial issues in state"

The title of this post is the headline of this Politico article, which reinforces my view (discussed here) that the presidential candidates will have a hard time dodging all discussion of federal pot prohibition and state pot policy reforms this election cycle.  Here are excerpts:

With the first presidential debate in Denver less than six weeks away, strategists and academics intimately familiar with Colorado gathered in Washington, D.C., to discuss issues particular to the vital swing state, such as marijuana decriminalization, “personhood” votes, the death penalty, and the influence of rising Democratic star Gov. John Hickenlooper.

In a panel sponsored by the University of Denver and moderated by former White House spokeswoman Dee Dee Myers, participants said the Aurora, Colo., shooting failed to spark efforts at gun control, but instead elevated talk of the death penalty, an issue that hasn’t received much national attention during this campaign cycle.

“Gun sales went up in Denver the week of the shooting, so it doesn’t seem to have been the impetus for a conversation on gun control. It has generated a fair amount of discussion about the death penalty however,” said Dr. Sam Kamin, a professor of law at the University of Denver.

The University of Denver will be the site of the first 2012 presidential debate between President Barack Obama and presumptive GOP presidential nominee Mitt Romney, to be held on Oct. 3....

And while the issues like the economy, Medicare and the deficit will no doubt be addressed during the debate, panelists took the time to address the specific policies making waves in the state.

At the same time as voters in Colorado head to the polls to cast a vote for president, they will also be addressing ballot questions on abortion and “personhood,” as well as the decriminalization of marijuana — so it is likely that the two presidential candidates might be asked about them.

The marijuana issue “is hugely popular with younger voters. … If they come out strongly and the Obama campaign doesn’t do anything to antagonize them on this issue, they could have a real impact,” Kamin said. “There’s a huge push online to get youth voters energized around that proposition, those are the exact same voters that had a lot of enthusiasm for the president four years ago.” Dee Dee Myers pointed out that Colorado is a state with more medical marijuana dispensaries than Starbucks locations.

Some recent and older related posts on pot policies and politics: 

• New astute articles on the modern realities of pot politics, policies and practices
• When and how might pot prohibition or federal pot policy enter the 2012 Prez campaign?
• Two notable new pieces on pot policy debates coming to mainstream politics
• Colorado the new "ground zero" for debates over pot prohibitions and policies
• "Medical Marijuana in Colorado and the Future of Marijuana Regulation in the United States"
• "Bummer: Barack Obama turns out to be just another drug warrior"
• A Beastly articulation of my (foolish?) hope candidate Romney might embrace the Right on Crime movement
• Marijuana legalization advocate getting warm reception at CPAC
• Could Romney appeal to independents and minorities with bold crime and punishment vision?
• "Marijuana Legalization Ballot Shows To Be Favored By Colorado Voters"

When and how might pot prohibition or federal pot policy enter the 2012 Prez campaign?

With the summer winding down and the political conventions not far away, I am already giving thought to whether, when and how crime and punishment issues could become part of the 2012 Presidential campaign.  One notable and distinguishing feature of recent big national elections has been the lack of engagement with domestic crime and justice issues, due in part probably to a combination of declining crime rates, declining differences in the policies of the major parties, and the focus on terrorism as the chief public safety concern to get national political attention in the wake of 9/11.

For various reasons, I expect Obama and Romney to both make the (wise? safe?) decision to avoid significant discussion of many serious domestic criminal justice issues.  Neither candidate has an exemplary record on these issues, but neither has an obvious political vulnerability on this front that the other might seek to exploit.  Thus, I will be very surprised if either campaign brings up crime and punishment issues or if there is any discussion of them at the conventions.

But, as the question in the title of this post suggests, I suspect it may prove very hard for the candidates to completely dodge some engagement with pot prohibition or federal pot policy over the next three months.  This is so for various reasons: (1) there are state pot legalization initiatives on the ballot in three states, including the swing state of Colorado, (2) Libertarian candidate Gary Johnson may work hard to get these issues into the campaign mix; (3) many local candidate are engaging with these issues in state campaigns (see, e.g., this recent story from Vermont); and (4) pro-legalization forces are very effective at pushing these issues when given a chance to post questions on YouTube or via other open avenues.

I doubt pot policy will ever become a "big" issue in the fall campaign, but I would be working hard on a nuanced answer to the many potentially tough marijuana questions if I were working for one of the campaigns.  Indeed, if Romney really needs and is looking for a "Sister Souljah Moment," as this recent New Republic commentary argues, he might consider going after Obama for seemingly breaking his 2008 campaign promise to leave states alone to do their own thing on medical marijuana fronts.  (Though were Romney to talk about reformed pot policies, we might now call this a Pat Roberson moment.)

Some recent and older related posts on pot policies and politics: 

• New astute articles on the modern realities of pot politics, policies and practices
• Big win at polls for medical marijuana supporter in Oregon AG race
• Latest polling indicates legalization of marijuana now has strong majority support
• Two notable new pieces on pot policy debates coming to mainstream politics
• Colorado the new "ground zero" for debates over pot prohibitions and policies
• "Medical Marijuana in Colorado and the Future of Marijuana Regulation in the United States"
• "Bummer: Barack Obama turns out to be just another drug warrior"
• Proof of prohibition's failings?: teens now smoke pot more than tobacco
• A Beastly articulation of my (foolish?) hope candidate Romney might embrace the Right on Crime movement
• Marijuana legalization advocate getting warm reception at CPAC
• Could Romney appeal to independents and minorities with bold crime and punishment vision?

A Beastly articulation of my (foolish?) hope candidate Romney might embrace the Right on Crime movement

I had the great fortune and honor to be asked by folks at The Daily Beast to expound a bit on themes in this post from earlier this week titled "Could Romney appeal to independents and minorities with bold crime and punishment vision?."  The last few paragraphs of this now-published Daily Beast piece of mine adds these ideas to my prior thoughts:

A conservative politician with true conviction on [liberty and limited government] issues could further argue that federal and state governments ought to rely far less on incarceration as a response to less serious crimes, or that the long-running “war or drugs” (which surely restricts individual liberty, personal responsibility, and free enterprise as much as alcohol prohibition did a century ago) suffers from many of the same big-government flaws as other top-down efforts to improve society.

Of course, it may be not only naive but even foolish to expect Romney to pioneer change in this arena.  After all, he has not yet shown much boldness in his campaign strategies so far, and I wonder if he has either the political courage or the personal convictions needed to reshape the GOP message on crime and punishment for the better.  Indeed, when Romney was governor of Massachusetts, he took heat from both the left and the right when he tried to develop a “foolproof” death-penalty system for the state.  That experience, together with the knee-jerk tough-on-crime stance most politicians still readily embrace, may ensure that Romney will see more political risks than rewards on this path.

But there’s a “toe in the water” opportunity here, provided last summer by none other than Ron Paul. Together with outgoing Massachusetts Democrat Barney Frank, Paul introduced a bill that, while allowing the federal government to continue enforcing interstate marijuana smuggling, would let states develop and apply their own distinct laws on marijuana production and use so that individuals could grow and sell it in places that choose to make it legal.

If Romney were to express his support for this bill, he might not only pull in libertarian-leaning independents who have helped fuel the Paul campaign, but he would signal to minority groups — who rightly lament the disparate impact of the drug war on people of color — that he understands and respects their concerns.  Further, if Romney adopted this sort of “states’ rights” approach to marijuana laws and regulations, he could reinforce and reiterate the nuanced principles behind his claims in the health-care-reform debate that there are some areas where the federal government ought to butt out.

But Romney’s apparent lack of conviction isn’t his only obstacle.  In the last few election cycles, traditional criminal-justice issues have not been a topic of much discussion, perhaps because of recent declines in the crime rate and because, post-September 11, voters seem to care more about how candidates view the war on terror than how they view the war on drugs.  Tellingly, Romney’s official campaign website has an Issues page with detailed positions on two dozen topics, none of which address traditional crime and punishment concerns.  Yet that same page asserts that the “foundations of our nation’s strength are a love of liberty and a pioneering spirit of innovation and creativity,” and another page champions a “simpler, smaller, smarter government” and asserts that “as president, Mitt Romney will ask a simple question about every federal program: is it so important, so critical, that it is worth borrowing money from China to pay for it?”

The important recent work of many Republican governors on sentencing reform, as well as the existence of prominent conservatives supporting the Right On Crime movement, indicate that many on the right would support and even help champion a commitment to reconsider the efficacy of drug war and to question which parts of the massive federal criminal-justice system are not worth the cost.  Perhaps with prodding from those on both sides of the aisle, this election could bring us more real talk about criminal-justice reform from candidate Romney than from President Obama.

Could Romney appeal to independents and minorities with bold crime and punishment vision?

It seems now all but certain that Mitt Romney is going to secure the Republican nomination and take on President Obama in the general Presidential election this Fall.  Consequently, I am starting to think about whether and how criminal justice issues might play a role in the coming Romney v. Obama 2012 campaign.  In particular, I am wondering about who might be giving Romney advice on crime and punishment issues, and I am especially hoping that Romney might seriously consider a bold new GOP approach to these issues in an effort to reach out to independent and minority voters (especially young ones). 

As regular readers know, the Right on Crime folks have set forth an effective "conservative case" for criminal justice reform.  In this statement of principles, which stresses "limited government, transparency, individual liberty, personal responsibility, and free enterprise," there is a strong suggestion that incarceration should play a smaller role in modern criminal justice systems and that the drug war ought to be scaled back significantly.  GOP stalwarts ranging from Jeb Bush to Newt Gingrich to Grover Norquist to Edwin Meese to John DiIulio to Ralph Reed to Larry Thompson have all signed off on these principles and likely would be supportive of their embrace by candidate Romney.

Meanwhile, I strongly suspect that many folks (myself included) who thought President Obama might be an effective advocate for needed criminal justice reforms have been persistently disappointed by the work of the Obama Administration in this arena. On issues ranging from federal marijuana policy to criminal discovery reform to mandatory minimum sentencing statutes to clemency practices, the last few years have represented a missed opportunity for needed federal reforms with a deeply disappointing failure in leadership and vision.

I fully understand political and practical reasons why President Obama has not been able to engineer the sort of hope and change in the criminal justice system promised by candidate Obama.  But this very reality prompts me to believe there is a real opening for candidate Romney to seize on this issue and, without having to do any major Etch-a-Sketch revisions to his campaign rhetoric, to demonstrate to many potential swing voters and even a part of the Obama base that he is ready and willing to bring the GOP's rhetoric about the evil of big government to bear on the big federal criminal justice system.

Because Romney has not yet shown much boldness in his campaign strategies to date, and because criminal justice issues are sure to continue to take a back seat throughout the rest of the 2012 election season, I am not expecting much here.  But I continue to hope for change, and the recent work of a number of GOP governors on sentencing reform suggests to me that it now may be more likely to hear real talk about real criminal justice change from candidate Romney than from President Obama.

Some recent and older related posts: 

• "Right on Crime: The Conservative Case for Reform" officially launches
• "NAACP, right-wing foes get friendly" when it comes to prison costs
• "Conservatives latch onto prison reform"
• When and how will state GOP leaders start cutting expensive criminal justice programming?
• New poll reports that large majority of Americans consider "War on Drugs" a failure
• NAACP head recognizes Tea Party favors some progressive criminal justice reforms (and sometimes more than Democrats)
• Two state govs request that feds reclassify pot to ease medical use
• "Marijuana questions dominate White House online chat -- again"
• Fascinating NPR piece on how feds have ended local innovation on pot regulation
• "Obama's War on Pot"
• Marijuana legalization advocate getting warm reception at CPAC