Sentencing Law and Policy

Another reminder of the crime dog that did not bark in the 2008 election season

Since one senate race was only decided last night and another one remains unresolved, this commentary I just noted on SSRN still is timely.  The piece is by Professor Stephen Saltzburg from the Summer 2008 issue of the ABA's Criminal Justice magaine, and it is titled "Where is Criminal Justice in this Presidential Year?".  Here is the abstract:

This article notes that throughout the presidential campaigns there has been little emphasis on criminal justice and few serious proposals by candidates for changing or improving the way in which the federal government enforces criminal law.  There has been little discussion about the respective roles that the federal government and the states should play in law enforcement.  The author calls for the next president to convene an inclusive national congress on criminal justice. He encourages the president to bring together prosecutors, defense counsel, judges, legislators, law enforcement, correctional officials, probation and parole officers, academics, victims advocacy groups, other public interest organizations, and ordinary citizens to reexamine and establish our criminal justice priorities, to propose reforms that will identify more clearly those whose criminal acts warrant long prison sentences and those who are better served by treatment.

Friday's news full of mixed blessings for Senator Ted Stevens

As detailed in this local news report, Alaska's Senator Ted Stevens got some bad political news on Friday when more vote counting put him further behind in his race with Anchorage Mayor Mark Begich.  However, there are tens of thousands of ballots still to be counted before Senator Stevens must give up hope of having been returned by Alaskan voters to the U.S. Senate.

Meanwhile, as detailed in this blog post, Alaska's Senator Ted Stevens got some good sentencing news on Friday when a split DC Circuit panel affirmed a below-guideline sentence of probation for a tax cheat.  Though there are many sentencing questions that will need to be addressed before I am prepared to predict Stevens' sentencing fate, the DC Circuit's ruling in Gardellini ensures that Stevens' lawyers will be able to effectively advocate against any prison term for the "Alaskan of the Century" (that's last century, I believe).

Some recent related Stevens posts:

• Senator Stevens convicted on all counts
• Some sentencing questions after Senator Stevens conviction
• How should (and will) Senator Stevens' political past and future impact his sentencing?
• Senator Ted Stevens not (yet) disenfranchised
• Will Senator Stevens pay at sentencing for election-related comments?
• Another appellate issue for Senator Stevens?
• Has a mega-jury in Alaska essentially rejected the DC jury's conviction of Senator Stevens?
• As more Alaskan votes are counted, Senator Stevens may have more time to focus on sentencing issues

"Smart on Crime: Recommendations for the Next Administration and Congress"

The title of this post in the title of a new report I just learned about through an e-mail with the text of this press release:

A coalition of more than 20 organizations and individuals is pleased to announce the publication of a catalogue of key criminal justice issues and policy recommendations for the next administration and congress.

Virginia Sloan, President of the Constitution Project, which coordinated the coalition's efforts, said: "'Smart on Crime: Recommendations for the Next Administration and Congress'reflects the ongoing, collaborative efforts of a coalition of more than twenty leading organizations and individuals to provide policymakers with a framework for addressing criminal justice issues. The catalogue includes recommendations drawn from the shared knowledge and experience of a broad coalition of groups devoted to improving our criminal justice system."

The catalogue identifies 43 criminal justice priorities in 15 issue areas, makes recommendations for congressional and executive action, and provides in-depth background information on a broad array of subjects. It also includes lists of issue-based resources and experts.

The catalogue is available online at http://constitutionproject.org/....

The report contains the following chapters:

1.Overcriminalization of Conduct, Overfederalization of Criminal Law, and the Exercise of Enforcement Discretion

2. Federal Law Enforcement Reform - Improve Investigative Techniques, Including Eyewitness Identification, Incentives to Testify, and Interrogation

3. Forensic Science Reform -- Federal Oversight and Standards

4. Federal Grand Jury Reform

5. Federal Sentencing Reform

6. Asset Forfeiture Reform

7. Innocence Issues

8. Prison Reform

9. Pardon Power/Executive Clemency -- Breathe New Life into the Pardon Power

10. Re-entry -- Ensure Successful Reintegration After Incarceration

11. Public Defense Reforms-Make our Communities Safer by Supporting Quality Public Defense System

12. Death Penalty/Habeas Corpus Reform

13. Juvenile Justice Reforms

14. Fixing Medellin: Compliance with International Law and Protecting Consular Access

15. Victim Issues and Restorative Justice

Because the report runs 263 pages(!), I fear it might be too much of a good thing.  But I am looking forward to reading it all the same.

Updates on drug policy and crime-related state initiatives

This news report from Join Together provides an effective review of all the drug policy state initiatives that were considered by voters yesterday.  Here is how the review begins:

California voters yesterday soundly defeated closely-watched Proposition 5 and another drug-related initiative, while Massachusetts and Michigan passed marijuana-related measures by wide margins.  Voters in Maine, Oregon, and North Dakota also weighed on in statewide ballot issues related to alcohol, tobacco and other drugs.

In other initiative news, this AP reportindicates that voters in San Francisco rejected Proposition K, which would have barred local authorities from investigating, arresting or prosecuting anyone for prostitution.

Also, at C&C, Kent provides this opinionated update on Califorina-specific crime-related initiatives:

With 95% of precincts reporting, it appears that Proposition 9, the crime victims' rights initiative, has passed by a 6% margin.  On the same ballot, the Soros-backed Proposition 5 was rejected by a whopping 20% margin.... Proposition 6 was also defeated by a large margin, probably reflecting a distaste for ballot-box budgeting at a time of fiscal crisis....  Confirming that San Francisco is not entirely devoid of common sense, the hooker proposition lost by 16 points.

Are we on the verge of a new changed era concerning federal sentencing law and policy?

Yes I hope.  I may be naive in thinking that the historic election results mark a significant turning point in the politics of crime and punishment, but I cannot help but be more hopeful as we begin a new era of leadership in the executive branch of the federal government.

As evidenced by a post titled Jan 21, 2009: crimlaw issues at Capital Defense Weekly, I am not alone at looking forward to a new criminal justice political universe.  But, as a famous lawyer from Harvard once noted, "The life of the law has not been logic; it has been experience."  Only time will tell what we can expect in this coming new era.

Some related posts:

• What might a new administration mean for the federal death penalty?
• "Real commander needed for the war on drugs"
• A dollars and sense criticism of Senator Obama's crime-fighting plans
• Senator Biden, crime and punishment
• FSR publishes issue on "American Criminal Justice Policy in a 'Change' Election"

VOTE, VOTe, VOte, Vote, vote, votE, voTE, vOTE, VOTE...

or you have much less moral authority for complaining about the nature and direction of American laws and society!!

In my sleepy little Ohio hamlet, I had to wait in line for nearly an hour to cast my vote on a touch-screen machine.  (This wait was about 10 times longer than it has ever taken me to vote, and I am actually proud and excited that I finally got to stand in a line to vote.)

I have done lots and lots and lots of sentencing-related election blogging, but typepad's lousy new archive technology means that only the most recent posts can be found in the archive Campaign 2008 and sentencing issues.  In any event, here are links to some major posts I have done on issues that remain lively this election day:

• Noticing the new ex-felon voting block
• Is ignorance bliss as Campaign 2008 ignores crime and punishment issues?
• A good question about prison nation ... dodged
• Boston Globe noticing crime dogs not barking in 2008 campaign
• Sentencing and drug policy reform initiatives to watch on Election Day
• Dueling Oregon initiatives on drug sentencing reform
• California's confusing efforts to do criminal justice by initiative
• FAMM suggests sentencing questions for the candidates
• New FAMM report and poll data on reforming mandatory minimums
• Why is Senator Jim Webb the only national figure focused on the prison economy?
• "Real commander needed for the war on drugs"
• A dollars and sense criticism of Senator Obama's crime-fighting plans
• Politics and the war on drugs
• Important (though incomplete) op-ed on mass incarceration and mercy
• FSR publishes issue on "American Criminal Justice Policy in a 'Change' Election"

Creating a (merit-based?) circuit court short list for the Prez candidates

In the closing days of the Presidential campaign lots of attention has been given to judicial appointments, including possible appointments to the circuit courts as well as to the Supreme Court.  (Recent examples come from Politico and the National Review and the National Law Journal.)  Though many have speculated about Supreme Court nominee short lists, I have not seen much buzz on exactly who could be on short lists for nominations to the federal circuit courts.

Of course, the results on Election Day and other national and local political forces will have a profound impact on who gets considered and nominated for openings on the US Courts of Appeals.  And, if the Senate has nearly 60 Democrats, a President McCain would have to make bipartisan nominations, while a President Obama would not have to (but still might) worry about Republican opposition to his choices.  But, even before this week's election results, perhaps we should start assembling a list of potential talent whom, based on substantive abilities, should be seriously considered for an appointment to the federal circuit courts in a new administration.

As a sentencing nut, my own short/wish list of potential circuit court nominees is comprised mostly of federal district judges and state court judges who have written thoughtful sentencing and criminal justice opinions.  Moreover, I genuinely hope that the next president, whomever he may be, will consider nominating to the circuit courts thoughtful federal district and state judges aligned with both political parties.  Especially in the arena of sentencing law, I believe perspective matters a lot more than politics.  More generally, I have long thought that the work of federal circuit courts benefit from having smart and dedicated judges coming from a lot of diverse legal and social perspectives.

So, dear readers, I hope you will use the comments to help the candidates start putting together a circuit court short list. 

Some related SCOTUS short-list posts (both recent and distant):

• Developing a SCOTUS short list of district court judges
• Insider myopia and the diverse benefits of a short bench
• Does SCOTUS need a trial judge?
• Great insights on SCOTUS and criminal justice
• Brave New Justice and sentencing issues
• Will the next SCOTUS nominee have any criminal law background?

Another notable criminal justice ballot proposition to watch in San Francisco

This New York Times article, headlined "San Francisco’s Prostitutes Support a Proposition," provides a thoughtful review of another ballot initiative dealing with an interesting set of criminal justice issues.  Here are excerpts:

When Proposition K was added to Tuesday’s ballot, many people likely snickered at the possibility that San Francisco might take its place alongside such prostitute-friendly havens as Amsterdam and a few rural counties in nearby Nevada.

But this week, it became readily apparent that city officials are not laughing anymore about the measure, which would effectively decriminalize the world’s oldest profession in San Francisco. At a news conference on Wednesday, Mayor Gavin Newsom and other opponents seemed genuinely worried that Proposition K might pass....

Supporters of the measure say it is a long-overdue correction of a criminal approach toward prostitutes, which neither rehabilitates nor helps them, and often ignores their complaints of abuse....

The language in Proposition K is far-reaching. It would forbid the city police from using any resources to investigate or prosecute people who engage in prostitution. It would also bar financing for a “first offender” program for prostitutes and their clients or for mandatory “re-education programs.”

One of the measure’s broadest prohibitions would prevent the city from applying for federal or state grants that use “racial profiling” in anti-prostitution efforts, an apparent reference to raids seeking illegal immigrants....

Supporters of the measure accuse the city of profiting from prostitution through fines. They also imply that laws against prostitution are inherently racist because minorities are disproportionately arrested. Proposition K, they say, will increase safety for women, save taxpayer money, and cut down on the number of murders of prostitutes at the hands of serial killers....

Anti-Proposition K forces paint grim pictures of girls and women from across the country held against their will in dark and dangerous brothels here, forced into unsafe sexual behavior, and often beaten, intimidated and raped....

The measure seems particularly abhorrent to San Francisco’s district attorney, Kamala D. Harris, who has made fighting human trafficking a priority. “I think it’s completely ridiculous, just in case there’s any ambiguity about my position,” Ms. Harris said. “It would put a welcome mat out for pimps and prostitutes to come on into San Francisco.”

Central to Ms. Harris’s objections is the theory that prostitution is a victimless crime. Instead, she said, it exposes prostitutes to drug, gun and sexual crimes, and “compromises the quality of life in a community.” She also dismisses the argument that prostitutes would be more likely to come forward if their business were not illegal.

Some recent related posts:

• Sentencing and drug policy reform initiatives to watch on Election Day
• Dueling Oregon initiatives on drug sentencing reform
• California's confusing efforts to do criminal justice by initiative
• "America's Forgotten War"
• FSR publishes issue on "American Criminal Justice Policy in a 'Change' Election"

"If Elected ... Criminal Justice"

I just noticed this installment of the New York Times series "If Elected," which is focused on criminal justice issues.  Here are excerpts:

As an Illinois legislator for seven years, Senator Barack Obama sponsored more than 100 bills on crime, corrections and the death penalty, making criminal justice one of his top priorities as a state lawmaker.

In his nearly three decades in Washington, Senator John McCain has had a reputation for taking strong law-and-order stances.

But compared with many past presidential elections, Mr. Obama and Mr. McCain have paid little attention to issues of criminal justice as they compete for the White House. The change is a reflection, experts say, of 15 years of declining crime rates, an electorate less anxious about public safety and the fact that crime and law enforcement issues are less partisan than they used to be....

In a speech before the National Sheriffs’ Association this year, Mr. McCain, Republican of Arizona, called for tougher punishment for violent offenders and appeared to disagree with Mr. Obama’s contention that the prison population is too high.... Mr. McCain also favors tougher sentences for illegal immigrants who commit crimes and more federal money to help local agencies detain them.

Both candidates supported the Second Chance Act of 2007, which provides money for job training and for drug counseling and other re-entry programs....

As a state lawmaker, Mr. Obama supported changes to the death penalty, including a bill that let judges reject a death sentence for someone convicted on the sole basis of an informant’s testimony. He also opposed a measure that would have applied the death penalty for gang-related murders because he feared that the law would be applied unevenly....

Since being elected to the United States Senate in 2004, Mr. Obama has helped sponsor legislation intended to reduce the disparity in prison sentences for crack cocaine versus powder cocaine because of his concern that existing laws unfairly discriminate against ethnic minorities.

He has also said he would instruct the Justice Department — particularly the Civil Rights Division — to change mandatory minimum sentences for nonviolent drug offenders, create loan-forgiveness programs for law students who become public defenders, and increase the number of police officers nationally.

Some related posts:

• Boston Globe noticing crime dogs not barking in 2008 campaign
• Is Senator McCain preparing to attack Senator Obama on crime issues?
• Rudy Giuliani doing robocalls accusing Senator Obama of being soft on crime
• FSR publishes issue on "American Criminal Justice Policy in a 'Change' Election"

Sentencing and drug policy reform initiatives to watch on Election Day

The Drug War Chronicle has this fantastic new feature article, headlined "Drug Policy Reform and Sentencing Initiatives on the November Ballot."  The article provides an effective review of all the big and little ballot initiative that sentencing fans should keep an eye on as this election season (finally) approaches its end.  Here are excerpts from the start pf the article:

Not only are there a number of state-level initiatives dealing with marijuana decriminalization, medical marijuana, and sentencing reform (or its opposite), there are also a handful of initiatives at the county or municipal level. But after a spate of drug reform initiatives beginning in the mid-1990s and continuing into the beginning of this decade, the pace has slowed this year. Of the 139 statewide initiatives identified by the Initiative and Referendum Institute as making the ballot this year, only seven have anything to do with drug reform, and four of those seek to increase sentences for various drug offenses.

Drug reformers have had an impressive run, especially with medical marijuana efforts, winning in Alaska, Arizona, California, Colorado, Maine, Montana, Nevada, Oregon, and Washington, and losing only in conservative South Dakota. Reformers also scored an impressive coup with California's "treatment not jail" initiative, Proposition 36, in 2002. At the municipal level, initiatives making adult marijuana offenses the lowest law enforcement priority have won in cities across California; as well as Denver; Seattle; Missoula County, Montana; Eureka Springs, Arkansas; and Hailey, Idaho. Detroit and several smaller Michigan cities have also approved municipal medical marijuana initiatives.

One reason for the slow-down in reformers' resort to the initiative process is that, as Marijuana Policy Project assistant communications director Dan Bernath put it, "We've already grabbed all the low-hanging fruit."...  "Only half the states have initiatives, so there are only so many places where reformers can push them," he said. "And it is an expensive process that is often complicated. On the other hand, you don't have to rely on timid politicians. The voters are often way out in front of politicians on marijuana reform initiatives, and with an initiative, you don't have to worry about those timid politicians tinkering with your legislation and taking all the teeth out of it," Bernath noted. "As a general rule, I think most reformers would prefer to see something passed by the voters, that gives it a lot of legitimacy."

And that's just what reformers are trying to do with medical marijuana in Michigan and marijuana decriminalization in Massachusetts this year, both of which appear poised to pass.  Likewise, in California, reformers are seeking to expand and deepen Prop. 36, but they also face a pair of sentencing initiatives aimed at harsher treatment of drug offenders.  And next door in Oregon, anti-crime crusaders also have a pair of initiatives aimed at punishing drug offenders -- among others.

Some recent related posts:

• Dueling Oregon initiatives on drug sentencing reform
• California's confusing efforts to do criminal justice by initiative
• "America's Forgotten War"
• FSR publishes issue on "American Criminal Justice Policy in a 'Change' Election"

New op-ed from Senator McCain talking about DOJ and judges

A helpful reader passed along this new op-ed authored by Senator John McCain in which he discusses the future of the Department of Justice and judicial appointments.  Here are snippets that might especially intrigue (and annoy) sentencing fans:

Lax enforcement policies, judges who legislate from the bench and lack of support for law enforcement personnel all continue to force our innocent citizens behind the barred windows of their homes and allow criminals to roam free.

And now drugs are bringing waves of crime and organized gang activity to rural areas thought to be nearly immune from such problems.  The federal government must both support state and local law enforcement and effectively enforce federal laws designed to root out violent crime, organized gangs and other interstate criminal activity.

None of these law enforcement efforts will succeed without a judiciary that understands its proper role and its proper mission.  Senator Obama would appoint liberal activist judges and supply them with greater sentencing discretion.  I will appoint judges who will strictly interpret our Constitution. Senator Obama's judges would coddle criminals.  I will appoint judges who will hold criminals accountable.

If allowed a follow-up question, I would ask how the Supreme Court's Heller Second Amendment ruling fits into all of this rhetoric.  Judges Posner and Wilkinson have described Heller as an example of legislating from the bench, and I believe that local DC police supported the gun ban struck down in Heller.

In addition, I am wondering exactly why John McCain believes that "Obama's judges would coddle criminals," given that most of the major pro-criminal rulings in recent years were authored by Supreme Court justices appointed by Ronald Reagan.  Justice Antonin Scalia coddled a brutal wife-beater with his decision in Blakely and an attempted murderer with his decision in Crawford; Justice Anthony Kennedy coddled a child rapist with his decision in the Kennedy child rape case and coddled a juve killer with his decision in Roper. 

Some related posts:

• Is Senator McCain preparing to attack Senator Obama on crime issues?
• Rudy Giuliani doing robocalls accusing Senator Obama of being soft on crime
• Boston Globe noticing crime dogs not barking in 2008 campaign
• FAMM suggests sentencing questions for the candidates
• Hoping for a presidential town hall on crime and punishment
• Why is Senator Jim Webb the only national figure focused on the prison economy?
• "Real commander needed for the war on drugs"
• Politics and the war on drugs
• FSR publishes issue on "American Criminal Justice Policy in a 'Change' Election"

Noticing the new ex-felon voting block

This Los Angeles Times article spotlights a notable new voting block: former felons who have regained the right to vote.  Here are snippets from the article:

At least a dozen states have changed their laws since 2003 to allow more felons who are no longer in prison to cast ballots, reversing a long-standing trend.  And though studies show that felons lean Democratic, states led by Republican governors have loosened their voting rules, including Alabama, Nebraska, Nevada and Florida -- where officials have learned from the 2000 presidential race just how close an election can be.

States restored voting rights to about 760,000 felons in the last decade, according to tallies by voting rights groups, but data on how many have registered to cast ballots are sketchy.  Whether these voters could tip an election in a presidential swing state is a matter of speculation.

But the new laws have produced aggressive registration drives this election season in the most unconventional of places -- soup kitchens, halfway houses, even Alabama state prisons.  "This is the first time in history that some of these places have ever seen this kind of civic activity," said the Rev. Kenneth Glasgow, who served time in prison.  He now heads an Alabama nonprofit faith-based organization and has led efforts to register the state's current and former convicts....

In some states, voting rights activists have been joined by evangelical Christian groups who argue that forgiveness plays an important role in rehabilitating criminals.  "We try to challenge the conservatives," said Pat Nolan, vice president of Prison Fellowship, a conservative Christian justice reform group founded by Charles Colson, the former Nixon administration aide who was convicted of Watergate-related crimes.  Nolan is a former state assemblyman from Glendale who served time in federal prison for racketeering.  "Why, after someone has paid their debt, do we continue to punish them?"

According to advocacy groups, about 5.3 million Americans, or 1 in 41 adults, have lost their right to vote because of a felony conviction.

Rudy Giuliani doing robocalls accusing Senator Obama of being soft on crime

Earlier this month there were reports that Senator McCain was going to resort to old-school "soft-on-crime" attacks as part of his strategy to get back his mojo in the final month of the 2008 campaign.  Thanks to reporting by Politico, we now are starting to see the specifics of the Big Mac attack on the crime front. 

First, as detailed here and here, the Republican Party of Florida has paid for a flier that alleges in various ways that Senator Obama would be soft on crime.  And now, as reported here and here, everyone's old pal and favorite mayor is getting into the act: "Rudy Giuliani is portraying Barack Obama as soft on crime in robocalls being blasted out to swing states by the RNC and the McCain campaign."

You can here this new robocall at this link, and here is the heart of Rudy's message to voters:

Hi, this is Rudy Giuliani, and I'm calling for John McCain and the Republican National Committee because you need to know that Barack Obama opposes mandatory prison sentences for sex offenders, drug dealers, and murderers.

It's true, I read Obama's words myself. And recently, Congressional liberals introduced a bill to eliminate mandatory prison sentences for violent criminals -- trying to give liberal judges the power to decide whether criminals are sent to jail or set free.  With priorities like these, we just can't trust the inexperience and judgment of Barack Obama and his liberal allies.

Candidly, I am not especially surprised that Senator McCain is playing this old-school "soft-on-crime" card in an effort to make up ground in the polls.  Indeed, I am a bit surprised that it took the McCain camp this long to try to beat up Senator Obama for putting responsible policy-positions ahead of inflammatory rhetoric in the sentencing arena.

Some related posts:

• Boston Globe noticing crime dogs not barking in 2008 campaign
• Is ignorance bliss as Campaign 2008 ignores crime and punishment issues?
• Is Senator McCain preparing to attack Senator Obama on crime issues?
• FAMM suggests sentencing questions for the candidates
• Will the 2008 Prez candidates ever seriously discuss modern incarceration realities?
• Hoping for a presidential town hall on crime and punishment
• Why is Senator Jim Webb the only national figure focused on the prison economy?
• "Real commander needed for the war on drugs"
• Politics and the war on drugs
• FSR publishes issue on "American Criminal Justice Policy in a 'Change' Election"

A last chance for a debate to bring up crime and punishment issues

Everyone is suggesting that tonight's Presidential debate will look and feel a lot different than what has come before.  I hope so, in part because a very different debate might lead finally to some national discussion of national crime and justice issues.  I am not expecting any serious criminal justice talk tonight, but just maybe we will hear some mention of the death penalty or the Second Amendment or mass incarceration or federal drug sentences.  I will be watching, just in case.

Some related posts:

• Boston Globe noticing crime dogs not barking in 2008 campaign
• How the media can do better: ask the candidates tough crime and punishment questions
• Is Senator McCain preparing to attack Senator Obama on crime issues?
• A dollars and sense criticism of Senator Obama's crime-fighting plans
• FAMM suggests sentencing questions for the candidates
• Will the 2008 Prez candidates ever seriously discuss modern incarceration realities?
• Hoping for a presidential town hall on crime and punishment
• Why is Senator Jim Webb the only national figure focused on the prison economy?
• "Real commander needed for the war on drugs"
• Politics and the war on drugs
• Is ignorance bliss as Campaign 2008 ignores crime and punishment issues?
• FSR publishes issue on "American Criminal Justice Policy in a 'Change' Election"

California's confusing efforts to do criminal justice by initiative

With only weeks until election day, I found interesting this article from the Sacramento Bee, headlined "Justice issues collide on ballot."  As the article explains, a set of diverse criminal justice issues are coming directly before California voters this fall.  Here is how the article starts:

Law and order activists, critics of California's drug laws and victims rights groups independently have loaded three separate crime measures onto the Nov. 4 ballot, and they're not making it easy for state voters to sort them out.

Together, Propositions 5, 6 and 9 cover 115 pages, would change scores of laws and would affect billions of dollars in state spending.

"My mom asked me if I have positions on all of them, and I told her I'm still working on it," said Assembly Public Safety Committee chairman Jose Solorio, D-Santa Ana, who presided over nine hours of hearings on the measures. "There's a lot to digest."

On Nov. 4, voters will decide whether to drastically change the way the state prosecutes drug addicts and the lower-level property crimes they commit, to the tune of diverting an estimated 18,000 offenders from prison into treatment programs. That's the basic thrust of Proposition 5.

They're also being asked to give local law enforcement more money, protect what funds they already get, and toughen laws aimed at street gang members, methamphetamine cookers and serious ex-cons who possess guns in public. Those are the basics of Proposition 6.

The third measure seeks to put victims at or near the center of the entire criminal justice process and give them a constitutional right to participate in plea bargaining and parole decisions. It also wants to make life-term inmates wait 15 years between parole hearings, stop early inmate releases and have counties build tent jails to handle inmate overflow. That's Proposition 9.

Boston Globe noticing crime dogs not barking in 2008 campaign

With all due respect to McGruff the Crime Dog (who has his own blog), I have been intrigued, somewhat amazed and consistently disappointed by how quiet the 2008 election season has been on issues of crime and punishment.  I am pleased to see that the Boston Globe, in this editorial headlined "Politically, crime doesn't pay," is also noticing that crime dogs are not barking this fall.  And the editorial has some interesting theories why:

Despite an overall drop in crime rates over the past decade, fear of crime remains a daily concern for residents in many American cities.  The candidates are giving short shrift to the issue by succumbing to their own fear of talking about crime.

Obama may be reluctant to draw attention to his hometown problems in Chicago, where murder and gun violence rates are up sharply.  McCain may see no political upside of the crime issue, either. He alienated the gun lobby again by supporting the rollback of the insidious Tiahrt amendment, which restricts the ability of local law enforcement agencies to gain access to comprehensive federal gun tracing data as a means to identify rogue gun dealers....

Americans of all races are still waiting for a healthy debate on why black people are imprisoned at five times the rate of white people. Is it the breakdown of families, the failure of social and economic interventions, or racial bias on the part of police or prosecutors?  This subject deserves at least as much attention from the candidates as they give to "diplomacy without preconditions."

Each candidate still has some explaining to do.  Voters deserve to hear more about why McCain voted against bipartisan crime bills during the 1990s.  And Obama's position on the constitutionality of citywide bans on handguns remains murky, at best. The candidates seem only too happy to duck discussions about crime.  Neither, therefore, deserves commendation as an especially effective crime-fighter.

I concur that both Presidential candidates are happy to duck discussions about crime, but the media (both mainstream and non-traditional) are also responsible for failing to show any real interest or concern about these issues.  Moreover, it has been more than 20 years since either political party has shown a real interest at the federal level in having a truly "healthy debate" about crime and punishment.  Largely inconsequential distractions like the death penalty, the exact scope or federal judicial sentencing discretion, and US attorney firings make for great political theater and sound-bites, but it has been decades since persons in either the White House or Congress has shown a real interest in the hard work of figuring out how best to prevent and fight crime throughout the United States.

Some related posts:

• How the media can do better: ask the candidates tough crime and punishment questions
• FAMM suggests sentencing questions for the candidates
• Is ignorance bliss as Campaign 2008 ignores crime and punishment issues?
• A dollars and sense criticism of Senator Obama's crime-fighting plans
• Will the 2008 Prez candidates ever seriously discuss modern incarceration realities?
• Hoping for a presidential town hall on crime and punishment
• Why is Senator Jim Webb the only national figure focused on the prison economy?
• FSR publishes issue on "American Criminal Justice Policy in a 'Change' Election"
• Is Senator McCain preparing to attack Senator Obama on crime issues?

Could tonight's town hall debate finally bring up crime and punishment issues?

I am consistently disappointed whenever I start hoping the Presidential candidates will talk seriously about crime and punishment issues.  Nevertheless, my single-issue-blogger hope springs eternal, and perhaps the town hall setting for tonight's debate could help facilitate some discussion of the death penalty or the Second Amendment or mass incarceration or federal drug sentences.  But I am not holding my breath.

Interestingly, as detailed in this AP report and this official press release, the International Association of Chiefs of Police was recently able to get both candidates to responded to six written questions on "crime, terrorism and homeland security."  The Q&A can be accessed in this pdf from the October issue of Police Chief Magazine.  Here is how the AP summarized the answers:

Obama promised to restore funding to the popular Community Oriented Policing Services, commonly called COPS, and Byrne Justice Assistance grants, which local departments use to hire officers. These grants have seen significant cuts since the beginning of the Bush administration. Obama also said he would put in place "innovative" youth crime prevention programs and prisoner re-entry programs....

Republican John McCain also supports prison re-entry programs.  But he did not mention COPS or Byrne grants. Instead, he promised to "restore credibility" to the existing grant programs, get rid of earmarks and give funding to the communities that need it — a similar approach to what is being done in the current administration when distributing homeland security grants.  McCain would also work to improve the economy and unemployment rate as a way to reduce crime.

Some related posts:

• Is Senator McCain preparing to attack Senator Obama on crime issues?
• A dollars and sense criticism of Senator Obama's crime-fighting plans
• FAMM suggests sentencing questions for the candidates
• Will the 2008 Prez candidates ever seriously discuss modern incarceration realities?
• Hoping for a presidential town hall on crime and punishment
• Why is Senator Jim Webb the only national figure focused on the prison economy?
• FSR publishes issue on "American Criminal Justice Policy in a 'Change' Election"

UPDATE:  Yawn.... A series of rehashed points from stump speeches masquerading as a town hall discussion.  Another disappointing discussion that did not cover any new ground.  Oh well.

A dollars and sense criticism of Senator Obama's crime-fighting plans

Writing over at Slate, Radley Balko has this very interesting critique of Senator Obama's latest campaign talk about crime and justice issues. The piece is titled "Bad Cop: Why Obama is getting criminal justice policy wrong," and here are snippets from the start of a strong piece that should be read in full:

When Sen. Barack Obama expressed concern early in the primary season that there are more young black men in prison than in college, he raised hope that he might be the first major-party candidate in a generation to adopt a more nuanced criminal policy than the typical "longer sentences, more prisons, more cops."...

But in the last month, Obama's line on criminal justice has been a lot less encouraging.  His running mate selection of Joe Biden, long one of the Senate's most strident crime hawks and staunchest drug warriors, was telling.  Since the vice-presidential pick, Obama and Biden have embraced criminal justice policies geared toward a larger federal presence in law enforcement, a trend that started in the Nixon administration and that has skewed local police priorities toward the slogan-based crime policies of Congress, like "more arrests" and "stop coddling criminals."

In particular, Biden and Obama have promised to beef up two federal grant programs critics say have exacerbated many of the very problems Obama expressed concern about earlier in the primaries.  Obama and Biden's position shows an unwillingness to think critically about criminal justice.  They are opting instead for the reflexive belief that more federal involvement is always preferable to less.

The rest of the commentary goes on to explain why putting more federal dollars into more local cops into more federal drug task forces may often prove to be more harmful than helpful (and always proves to be expensive).  Here is the key theme to Balko's analysis and his criticism of federal involvement in local criminal justice issues: "The main problem with federal block grants is that once they're issued, Congress can't monitor them to be sure they're spent properly."

In short, Balko highlights critical concerns that apply to all government activities: the importance of following the money and of demanding cost-benefit accountability and effectiveness.  Indeed, if we were to seriously follow the money and demand cost-benefit accountability and effectiveness throughout all aspects of our criminal justice systems, I think we would have a much more sound and sensible approach to all sorts of crimes and punishments.

Some related posts:

• It's the prison economy, stupid
• More evidence that it's the prison economy, stupid
• Still more evidence it's the prison economy, stupid
• FAMM suggests sentencing questions for the candidates
• How the media can do better: ask the candidates tough crime and punishment questions
• Will the 2008 Prez candidates ever seriously discuss modern incarceration realities?
• Hoping for a presidential town hall on crime and punishment
• "Real commander needed for the war on drugs"
• Why is Senator Jim Webb the only national figure focused on the prison economy?
• Politics and the war on drugs
• FSR publishes issue on "American Criminal Justice Policy in a 'Change' Election"

Is Senator McCain preparing to attack Senator Obama on crime issues?

Over at The Atlantic, Marc Ambinder has this notable new post suggesting that old-school "soft-on-crime" attacks are part of Senator McCain's strategy to get back his mojo in the final month of the 2008 campaign:

This Tuesday's debate will determine whether there's any re-tightening in battleground states, with the McCain campaign conceding that if the election were to be held this Tuesday, Obama would win more than 300 electoral votes....

Here is the gameplan [for issues on which to attack Senator Obama]:...

2. Obama's record on crime.  "Far outside the mainstream."  Crime record -- far outside the mainstream...issues like gang violence and crack/powder retroactivity (which even the Bush admin supports but is not popular)...  Are they skating close to the race line here?  The McCain camp turns it around: since when is a black candidate given a free pass on these issues?

As regular readers know, I have been itching for crime and punishment to be a campaign issue for quite some time.  I am not especially surprised that the campaign of Senator McCain would return to classic line of attack on Democrats; indeed, I am surprised that this issue has not come up sooner.

Because there has been so little campaign talk about crime and punishment, it will be interesting to see how the McCain campaign will try to get this issue attention and also whether the media (both mainstream and online) will make up for lost time by giving the issue the coverage it merits.  Interestingly, I see that John McCain's website has this updated page on "Fighting Crime," but I do not yet see any new video focused on crime and punishment issues.

Some related posts:

• FAMM suggests sentencing questions for the candidates
• Is ignorance bliss as Campaign 2008 ignores crime and punishment issues?
• How the media can do better: ask the candidates tough crime and punishment questions
• Will the 2008 Prez candidates ever seriously discuss modern incarceration realities?
• A good question about prison nation ... dodged
• Hoping for a presidential town hall on crime and punishment
• What will the new libertarian presidential candidate say about mass incarceration and the drug war?
• "Real commander needed for the war on drugs"
• Will any Prez candidate promise to get us out of a failed war ... on drugs?
• Why is Senator Jim Webb the only national figure focused on the prison economy?
• Politics and the war on drugs
• FSR publishes issue on "American Criminal Justice Policy in a 'Change' Election"

Rooting for crime and punishment to come up in VP debate

As regular readers know, I have been hoping that crime and punishment issues would get more attention during the 2008 campaign.  Perhaps because I am an eternal optimist, I have a inkling that tonight's VP debate might get into some crime and justice issues.  Senator Biden has a long record on criminal justice issues at the federal level, and Governor Palin likewise has a record on these issues at the local and state level. 

Needless to say, I will be rooting hard that Gwen Ifill will ask at least a few crime and justice questions tonight.  If she is looking for ideas about what she might ask, lots of possibilities can be found in some of the posts linked below.  And, of course, readers are welcome to add their own suggested questions through the comments.

Some related posts:

• Governor Palin, crime and punishment
• Senator Biden, crime and punishment
• Is Governor Palin is a real fan of jury nullification and pot decriminalization?
• Some information about Governor Palin's criminal justice record
• What will the new libertarian presidential candidate say about mass incarceration and the drug war?
• "Real commander needed for the war on drugs"
• Will any Prez candidate promise to get us out of a failed war ... on drugs?
• Is ignorance bliss as Campaign 2008 ignores crime and punishment issues?
• Will the 2008 Prez candidates ever seriously discuss modern incarceration realities?
• A good question about prison nation ... dodged
• Hoping for a presidential town hall on crime and punishment
• Why is Senator Jim Webb the only national figure focused on the prison economy?
• Politics and the war on drugs
• How the media can do better: ask the candidates tough crime and punishment questions
• FAMM suggests sentencing questions for the candidates

UPDATE:  Bummer, no real discussion of crime and punishment issues.  Oh well, maybe in one of the next two Presidential debates between Senators McCain and Obama.

FSR publishes issue on "American Criminal Justice Policy in a 'Change' Election"

I am pleased to report that, just in time for the election stretch-run, the latest issue of the Federal Sentencing Reporter focused on American criminal justice is now available here on-line.  The issue is titled, simply enough, "American Criminal Justice Policy in a 'Change' Election."  The full contents of this FSR issue are listed on-line here, and here is just a small sample of what readers can find in the issue:

EDITOR'S OBSERVATIONS

• Frank O. Bowman, III,, The Sounds of Silence: American Criminal Justice Policy in Election Year 2008 (available for download below)

ARTICLES BY ELECTED OFFICIALS

• Patrick Leahy, Using DNA and Forensic Science to Catch the Guilty and Protect the Innocent
• Claire McCaskill, Reentry Courts
• Robert C. “Bobby” Scott, Deemphasize Punishment, Reemphasize Crime Prevention
• Lamar Smith, The New Challenges of Cybercrime

Download bowman_205_ed_obs.pdf

New FAMM report and poll data on reforming mandatory minimums

This press release discussing a new report and interesting polling data from the folks at Families Against Mandatory Minimums provides interesting sentencing grist for the political mill.  Here are excerpts from the press release:

A new poll released today by Families Against Mandatory Minimums (FAMM) shows widespread support for ending mandatory minimum sentences for nonviolent offenses and that Americans will vote for candidates who feel the same way.... 

“Politicians have voted for mandatory minimum sentences so they could appear ‘tough on crime’ to their constituents. They insist that their voters support these laws, but it’s just not true,” says Julie Stewart, president and founder of FAMM.  “Republicans and Democrats support change and that should encourage members of Congress to reach across the aisle next year and work together to reform mandatory minimums.  Mandatory sentencing reform is not a partisan issue, but an issue about fairness and justice that transcends party lines.”...

The poll bolsters the findings of FAMM’s comprehensive new report, Correcting Course: Lessons from the 1970 Repeal of Mandatory Minimums, which describes how Congress repealed mandatory minimum sentences for drug offenses in 1970 — and had no trouble getting reelected. 

“Our report and poll show that lawmakers can vote to reform mandatory minimums for nonviolent offenses and live to tell the story.  Republicans and Democrats alike don’t want these laws.  They don’t work, they cost taxpayers a fortune, and people believe Courts can sentence better than Congress can.  Another repeal of mandatory drug sentences isn’t just doable, it’s doable right now,” says Molly Gill, author of Correcting Course.

Both the Correcting Course report and the poll result are worth checking out in full.  Here are links from the FAMM website:

• StrategyOne/FAMM poll on mandatory sentences
• Correcting Course: Lessons from the 1970 Repeal of Mandatory Minimums

"The Candidates and the Court"

The title of this post is the headline of this editorial today in the New York Times.  Here are snippets:

Among the many issues voters need to consider in this campaign is this vital fact: The next president is likely to appoint several Supreme Court justices. Those choices will determine the future of the law, and of some of Americans’ most cherished rights.

John McCain and Barack Obama have made it clear that they would pick very different kinds of justices. The results could be particularly dramatic under Mr. McCain, who is likely to complete President Bush’s campaign to make the court an aggressive right-wing force....

Mr. McCain has promised the right wing of the Republican Party that he would put only archconservatives on the Supreme Court. Even moderate conservatives like Anthony Kennedy, the court’s current swing justice, would not have a chance....

Mr. Obama has put distance between himself and legal liberals on issues like the death penalty for child rapists and the constitutionality of gun control.  As president, Mr. Obama would probably be more inclined to appoint centrist liberals, like Justice Stephen Breyer, than all-out liberals, like William Brennan or Thurgood Marshall.

Though I fully agree more that the 2008 election is very important for the future of the Supreme Court, the spin is in with this Times editorial.  As constitutional lawyers know, Justice Breyer has typically voted like Justices Brennan and Marshall on the death penalty.  And, I like to think a true "legal liberal" committed to individual rights would have voted with the purportedly "conservative" Second Amendment decision in Heller.  And, of course, these labels lack any real content when we look at rulings like Blakely and Booker and Rita and Kimbrough.

Of course, I do not really expect the New York Times editorial page to be as legally accurate as it is politically astute.  And the editorial certainly does set out the kinds of SCOTUS political talking points we may see if these issues ever become the focal point of serious discussion on the campaign trail.

UPDATE: Orin Kerr has this interesting new post at Volokh responding to the NY Times piece asking "Would Obama Nominate A Breyer or a Brennan?".

Libertarian Bob Barr speaks out against federal "war on drugs"

Providing exactly the politicial tonic to the usual tough-on-crime bromides, Libertarian Patry Presidential candidate Bob Barr has this new commentary at the Huffington posty speaking out against the federal war on drugs.  Here are extended excerpts from today's must-read:

As both a U.S. Attorney and Member of Congress, I defended drug prohibition. But it has become increasingly clear to me, after much study, that our current strategy has not worked and will not work. The other candidates for president prefer not to address this issue, but ignoring the failure of existing policy exhibits both a poverty of thought and an absence of political courage. The federal government must turn the decision on drug policy back to the states and the citizens themselves.

My change in perspective might shock some people, but leadership requires a willingness to assess evidence and recognize when a strategy is not working. We are paying far too high a price for today's failed policy to continue it simply because it has always been done that way....

Whether we like it or not, tens of millions of Americans have used and will continue to use drugs. Yet in 2005 we spent more than $12 billion on federal drug enforcement efforts.  Another $30 billion went to incarcerate non-violent drug offenders....

We simply must bring our system back into balance.  First, the federal government should get out of the "drug war" and allow states to determine their own drug policies. Rather than continuing to arrest and imprison people for offenses that do not directly harm other people, we should focus federal law enforcement on crimes involving serious fraud or violence, with identifiable victims.  Even then, only where there is a clear and specific federal interest, should the federal government be involved....

I also would review my presidential pardon and commutation powers as a possible means to reduce the number of people in federal prison for non-violent drug offenses.  We can no longer afford the human and economic costs of imprisoning so many thousands of people for drug possession. This is the most destructive impact of drug prohibition....

None of this means that I believe drug use to be harmless, or appropriate for minors. For that reason I would encourage people and institutions throughout America, from churches to social agencies to sports leagues, to work together to address drug abuse. One of our nation's greatest strengths is the willingness of people to organize outside of government to solve human problems.

But treating what is, at base, a moral, spiritual, and health problem as a matter of federal criminal law has solved nothing. The next president must put politics aside and take a long, hard look at the failure of the federal war on drugs.  We must reestablish the primacy of individual choice and state's rights in deciding these issues.  This always has been the greatest strength of America, and should be again.

Wow!  Great stuff on a topic that should be a much bigger part of the national political conversation.  Kudos to Bob Barr for this potent commentary.  I am now hoping Barr gets to participate in some way in some of the Presidential debates.

Some related posts:

• What will the new libertarian presidential candidate say about mass incarceration and the drug war?
• "Real commander needed for the war on drugs"
• Will any Prez candidate promise to get us out of a failed war ... on drugs?
• Is ignorance bliss as Campaign 2008 ignores crime and punishment issues?
• Aren't extreme sentences and mass incarceration a "tired philosophy that trusts in government more than people"?
• Will the 2008 Prez candidates ever seriously discuss modern incarceration realities?
• A good question about prison nation ... dodged
• Hoping for a presidential town hall on crime and punishment
• Why is Senator Jim Webb the only national figure focused on the prison economy?
• (Too) little coverage of JEC hearing on US drug policy
• Upcoming JEC hearing on costs of US drug policy
• Seeking reports on JEC hearing on US drug policy this morning
• Politics and the war on drugs

Is Governor Palin is a real fan of jury nullification and pot decriminalization?

Writing here in Reason, Radley Balko has a very interesting take on Governor Sarah Palin. The piece is titled, "A Decent Pick: Libertarians could do worse than Sarah Palin," and here are snippets:

Palin was also one of just three governors in the country to issue a proclamation in support of "Jurors' Rights" day, an event sponsored by the Fully Informed Jury Association, which encourages the doctrine of jury nullification.  Nullification is an idea abhorred by tough-on-crime conservatives.

Palin also comes from a state whose constitution has one of the strongest privacy provisions in the country.  Alaska's traditional reverence for privacy and personal autonomy is reflected in a number of issues that would likely be at odds with the national Republican Party — or at least the Bush administration — including a rejection of the Real ID Act, and the de facto decriminalization of marijuana.

Some recent related posts:

• Governor Palin, crime and punishment
• Some information about Governor Palin's criminal justice record
• Will any Prez candidate promise to get us out of a failed war ... on drugs?
• Is ignorance bliss as Campaign 2008 ignores crime and punishment issues?
• Aren't extreme sentences and mass incarceration a "tired philosophy that trusts in government more than people"?

"Real commander needed for the war on drugs"

The title of this post is the title of this effective column in the Seattle Times by Neal Pierce.  Here are a few excerpts:

Will America's ill-starred "war on drugs" and its expanding prison culture make it into the presidential campaign? Standard wisdom says "no way."

We may have the world's highest rate of incarceration — with only 5 percent of global population, 25 percent of prisoners worldwide.  We may be throwing hundreds of thousands of nonviolent drug offenders, many barely of age, behind bars — one reason a stunning one out of every 100 Americans is now imprisoned.  We may have created a huge "prison-industrial complex" of prison builders, contractors and swollen criminal justice bureaucracies.

Federal, state and local outlays for law enforcement and incarceration are costing, according to a Senate committee estimate, a stunning $200 billion annually, siphoning off funds from enterprises that actually build our future: universities, schools, health, infrastructure....

A serious set of problems, a shadow over our national future?  No doubt.  But do our politicians talk much about alternatives?  No way — they typically find it too risky to be attacked as "soft on crime."...

Talk about a serious national issue on which we could use some presidential leadership — not dictating precise answers, but moving us to debate alternatives.  It's been 20 years since drugs and prisons have even been mentioned in the televised presidential debates.  Maybe not just Obama but McCain too could surprise us with some fresh ideas and promise of leadership as president.  But we probably won't hear this unless reporters press the issue.

Some related posts:

• Will the 2008 Prez candidates ever seriously discuss modern incarceration realities?
• A good question about prison nation ... dodged
• Hoping for a presidential town hall on crime and punishment
• Why is Senator Jim Webb the only national figure focused on the prison economy?
• How the media can do better: ask the candidates tough crime and punishment questions
• FAMM suggests sentencing questions for the candidates
• Will any Prez candidate promise to get us out of a failed war ... on drugs?
• Is ignorance bliss as Campaign 2008 ignores crime and punishment issues?
• Aren't extreme sentences and mass incarceration a "tired philosophy that trusts in government more than people"?

Important (though incomplete) op-ed on mass incarceration and mercy

Professor Carol Steiker has this interesting column in the Sunday Washington Post, headlined "Passing the Buck on Mercy."  The piece begins by discussing the debate over the sentencing of long-time fugitive Susan LeFevre (background here), and then turns to making broader points about mass incarceration and mercy.  Here are some excerpts:

Sitting in her cell in Plymouth, Mich., LeFevre is one of 2 million Americans behind bars. Many of them, like LeFevre, are nonviolent drug offenders.  The staggering number of American prisoners has made the United States the world's leading incarcerator; this nation locks up a greater number of offenders for longer periods than any other nation. In 1960, approximately 330,000 people were behind bars in the United States.  Today the number is 2.3 million.  Moreover, largely because of the "war on drugs," the increase in women's incarceration in recent years has far outstripped the increase in men's, devastating many families and communities.

How did we scale the soaring peaks of mass incarceration?  The decline of mercy has played a leading role.  With the noble intent of bringing rationality and order to what had often been a chaotic and even discriminatory system of criminal justice, reformers at every stage of the justice system have sought to limit the power of discretionary actors to say no to punitive policies.

Consider: Police departments have instituted mandatory arrest and "zero tolerance" policies that have swept up many low-level offenders.  Prosecutors' offices have given instructions, such as those issued by a series of Republican attorneys general, to charge only the most serious provable offenses, no matter what the circumstances.  Juries have convicted defendants on charges without any inkling of the sentencing consequences.  The ability of sentencing judges to respond to cases on their individual merits has been sharply curtailed or destroyed by sentencing guidelines and mandatory minimum sentences. And the granting of executive clemency has radically declined, not just in the Bush administration but also in governors' offices around the country....

An exit strategy from this upward spiral of incarceration lies in revitalizing the exercise of mercy.  Yes, mercy carries the risk of arbitrariness and discrimination.  Soccer moms such as LeFevre may seem to be more appealing defendants than many others who have committed nonviolent crimes.  But mass incarceration has had an enormous impact on poor and minority communities.  Only by reconsidering individual cases and questioning the necessity and desirability of punishment can we turn back from the prison state that we have become.

Our Founding Fathers understood the importance of checks and balances, but no one is checking or balancing the decisions that are causing our prisons to overflow.  By reinvigorating the veto power of actors all along the justice system, we may save individuals from unnecessarily destroyed lives.  We may save money in these economically trying times.  But most important, we may save ourselves -- by preserving the value of mercy.

The remarkable LeFevre provides an effective setting for considering the place of mercy in our criminal justice system.  But I think mercy and other concepts can only be an effective theme for reforming punitive laws and policies if effectively linked to American values.  Professor Steiker does this a bit in her final paragraph, but the link between checks and balances and acts of mercy feels a bit strained.

Of course, what the Framers were clearly trying to promote and safeguard through check and balances was the "blessings of liberty" (to use words from the Constitution's preamble) through the creation of a government that would help secure citizen's rights to "life, liberty, and the pursuit of happiness" (to use words from the Declaration of Independence's preamble).  In may view, the problem with mass incarceration and punitive policy lies not so much in the diminished value of mercy, but more fundamentally to the diminished commitment to human liberty within the United States.

But what is really missing in Professor Steiker's discussion is a failure to call national politicians to account for mass incarceration and continued acceptance of expensive punitive policies.  Especially with this piece appearing in the Washington Post, I would have like a few sentences noting and criticizing the failure of either presidential candidate to address these issues.  Indeed, linking this political point to the Framers' concerns, I keep hoping someone would ask the candidates whether they think the Framers would be proud to know that the United States is now the world's leader in incarceration rates. 

Some related posts:

• Celebrating liberty in the country leading the world in incarceration rates
• New "official" record high in US incarceration population
• Will the 2008 Prez candidates ever seriously discuss modern incarceration realities?
• A good question about prison nation ... dodged
• Hoping for a presidential town hall on crime and punishment
• How the media can do better: ask the candidates tough crime and punishment questions
• FAMM suggests sentencing questions for the candidates
• Potent new Pew report documents 1 in 100 prison reality
• "One nation, behind bars"
• Another strong editorial on mass incarceration
• "Why Are So Many Americans in Prison?"
• Another strong piece examining incarceration nation

Some information about Governor Palin's criminal justice record

Over at TalkLeft, Jeralyn has this long and details post headlined "Palin , Prisoners and the Alaska Prison System."  Here is one snippet:

Joe Schmidt heads up the Alaska Department of Corrections in her administration.  The previous Governor, Frank Murkowski, cut off almost all funds for treatment in prison, including for sex offenders, obviously a terrible idea.  Instead he decided to focus on post-release monitoring. The ACLU sued on behalf of three sex offenders.

Joe Schmidt admitted that cutting off treatment programs (which a court had ordered for sex-offenders) was the wrong approach.  Gov. Palin tried to restore some funds for treatment programs in her budget this year.  The legislature refused her funding request for sex offender treatment in prisons.

I am glad to learn that Gov. Palin supported providing some treatment programs for sex offenders, and I hope to hear more good news about her on the Alaska criminal justice front. 

Some recent related posts:

• Governor Palin, crime and punishment
• Senator Biden, crime and punishment
• Hey, big spender: John McCain's ambitious (and expensive?) crime-fighting agenda
• Will the 2008 Prez candidates ever seriously discuss modern incarceration realities?
• A good question about prison nation ... dodged
• Hoping for a presidential town hall on crime and punishment
• How the media can do better: ask the candidates tough crime and punishment questions
• FAMM suggests sentencing questions for the candidates
• Will any Prez candidate promise to get us out of a failed war ... on drugs?

Governor Palin, crime and punishment

Last week I had this post reflecting on, and seeking comments concerning, what Senator Obama's selection of Senator Biden meant for how the Democrats would approach crime and punishment issues this fall.  Now that John McCain has now made his surprising VP choice, I am starting to wonder about what this decision could mean for the Republican approach on these issues might be. 

Like most everyone else in the continental 48, I knew very little about Governor Sarah Palin before this morning.  But the fact that she, as noted here, is a "lifetime member of the NRA" could prompt more interesting post-Heller debate about the reach and application of the Second Amendment.  (I am already curious whether Governor Palin has a view about whether a person previously convicted of a domestic violence misdemeanor should be federally prosecuted simply for possessing a hunting rifle as in this federal case from Wisconsin.)

Notably, this Denver Post blog is calling Palin the "libertarian VP candidate."  I am not sure this label really fits, but I genuinely hope Palin might have a libertarian streak when in comes to the so-called "war on drugs" and similar criminal justice issues.  I hope we will find out this fall (although I continue to expect the MSM will continue to ignore important crime and punishment issues).

Some related posts on Campaign 2008:

• Senator Biden, crime and punishment
• Hey, big spender: John McCain's ambitious (and expensive?) crime-fighting agenda
• Will the 2008 Prez candidates ever seriously discuss modern incarceration realities?
• A good question about prison nation ... dodged
• Hoping for a presidential town hall on crime and punishment
• Is ignorance bliss as Campaign 2008 ignores crime and punishment issues?
• Why is Senator Jim Webb the only national figure focused on the prison economy?
• How the media can do better: ask the candidates tough crime and punishment questions
• FAMM suggests sentencing questions for the candidates
• Will any Prez candidate promise to get us out of a failed war ... on drugs?

Will crime and punishment get any attention at the Democratic Convention?

As national thoughts turn from Olympian achievements to political conventions, I continue to keep an eye on matters of crime and punishment.  As noted in this weekend post and by some bloggers, the Biden VP choice has some criminal justice angles.  Moreover, as this WSJ blog post notes, some Obama surrogates on the Sunday morning shows were talking up Joe Biden's purported crime-fighting achievements.  These developments have me now thinking that crime and punishment could get some play in Denver, though I am not sure I will be too keen on the themes that may be stressed.

As regular readers know from a bunch of posts linked below, I am troubled that many issues related to prison nation have gotten no serious attention throughout our seemingly endless 2008 election season.  Though I doubt that either party's convention will change this reality, I will be watching the activities this week in Denver (and next week in Minneapolis) just to see what might be said and what goes unsaid.

Some related posts on Campaign 2008:

• Will the 2008 Prez candidates ever seriously discuss modern incarceration realities?
• A good question about prison nation ... dodged
• Hoping for a presidential town hall on crime and punishment
• Is ignorance bliss as Campaign 2008 ignores crime and punishment issues?
• (Too) little coverage of JEC hearing on US drug policy
• Upcoming JEC hearing on costs of US drug policy
• Why is Senator Jim Webb the only national figure focused on the prison economy?
• How the media can do better: ask the candidates tough crime and punishment questions
• FAMM suggests sentencing questions for the candidates
• Senator Biden, crime and punishment
• Hey, big spender: John McCain's ambitious (and expensive?) crime-fighting agenda
• Will any Prez candidate promise to get us out of a failed war ... on drugs?

Senator Biden, crime and punishment

Now that Barack Obama has finally made his VP choice official, I am starting to think about what this decision might mean for what a President Obama would do on the crime and punishment front.  Jeralyn at TalkLeft is all over this topic already with this post that is both sharp and discouraging:

Obama and Biden are going to run a tired, decades-old but tried and true "tough on crime" campaign. I expected it with Obama, as his views on crime were never particularly progressive, but now with Biden, it's enshrined in cement.

I understand and appreciate that not all voters -- and not even all readers of this site -- agree with me that America, Prison Nation, is one of the worst failures of our Government and our democracy. It's regressive and an embarrassment.

I found these comments from Jeralyn a bit jarring now because Jeralyn has not consistently criticized the Clintons on this front, and because Senator Biden strikes me as just playing the old Clintonian "let's not be accused of being soft" game in the arena of crime and punishment.  Still, I think Jeralyn is right to lament that the crime and punishment arena is just another in which Senator Biden does not represent a new kind of politics.

Still, as detailed in prior posts listed below, Senator Biden has been ahead of the curve a bit on some important sentencing discussions in recent times:

• From July 2008: Senator Biden proposes "Justice Integrity Act" to study federal criminal justice disparities
• From July 2007: Senator Biden picking up Scooter Libby and Victor Rita parallels

I am interested to hear from the informed and insightful readers of this blog what they think of the Biden pick.

UPDATE:  Scott has some important and effective insights over at Simple Justice in this post, titled "Will "Tough on Crime" Still be the Only Choice?"

Is education the best way to fight crime? And why aren't these topics linked more in political discourse?

Over at The Faculty Lounge, Dan Filler has this great new post titled "Education In A Crime Control Frame."  Here are snippets:

A national organization called Fight Crime: Invest in Kids is pushing a new study showing that a ten percent increase in the number of high schoolers earning their degrees will cut 3,000 murders and 175,000 murders in the United States. And how do we spike those graduation rates? Bigger investments in pre-K programs, of course....

What's worth a closer look, however, is both the framing strategy, and the organization's success in enlisting law enforcement officials as advocates for preschool education funding. The framing of crime as a education issue, and education as a crime issue, are both intriguing.

Too frequently we see crime framed as a matter of individual flaws and failures. Admittedly, progressives are less inclined to view matters this way, but law enforcement officials — who are often battling for tougher criminal laws — often invoke this individualistic rhetoric to justify their support for harsh punishments.  Whatever the empirical basis for believing that harsh punishment will deter crime, it's clear that the public cottons to more retributive explanations for tougher criminal law.  And retributive explanations are grounded in some notion that crime is caused by moral depravity — rather than a lack of school funding.

On the flip side, we usually see education funding justified either as a fairness issue ("no child left behind") or a macroeconomic concern (we need educated citizens to compete in the world market). Framing education as a crime issue is savvy, because it does a better job of tapping into voter self interest....

This crime control frame ... suggests that education money will pay off for us.  Pay for a poor kid to go to pre-K and you can avoid being assaulted! 

I have long believed that folks from all political perspectives should see not just the policy justification for, but also the political virtues of, linking education policy/funding to crime policy/costs.  Nevertheless, but for Fight Crime: Invest in Kids and a few other public-policy groups, I have seen precious few efforts by politicians to talk smartly about education/crime links and related funding realities.  Indeed, as I noted in this recent post, when Reverend Rick Warren this past weekend asked both presidential candidates about the contrast between America's investment in education and in its prisons, apparently neither candidate siezed the opportunity to talk smartly about these issues.

Some related posts on Campaign 2008:

• Hoping for a presidential town hall on crime and punishment
• (Too) little coverage of JEC hearing on US drug policy
• Upcoming JEC hearing on costs of US drug policy
• Why is Senator Jim Webb the only national figure focused on the prison economy?
• How the media can do better: ask the candidates tough crime and punishment questions
• FAMM suggests sentencing questions for the candidates

A good question about prison nation ... dodged

Though I did not have a chance to watch the forum at Saddleback Church put together last night by Reverend Rick Warren (which sounds as if it was quite interesting), I am pleased to learn that someone has finally asked the candidates about US incarceration rates.  According to this post at TalkLeft, Rev. Warren "asked about the contrast between the investment America makes in its educational system and the investment it makes in its 'we're number one!' prison system."

According to the TalkLeft post, both candidates talked about education policy and avoided the "prison nation" part of the question.  I suppose I am not surprised, but I am deeply disappointed.  Especially with a religion-oriented crowd, this question presented a great opportunity for one or both of the candidates to discuss the need for our criminal justice system to put more faith in the possibility of human redemption.  In addition, the question's justifiable suggestion of a zero-sum game in the local funding of prisons and schools, one or both of the candidates could and should have used this question to stress the need to shift tough-on-crime political attitudes toward smart-on-crime policy solutions.

Because I did not see the Saddleback forum, I cannot comment further on the specifics of the question and the (non) answers.  But I do want to complement Rev. Warren for asking the right kind of public policy question and question the failure of either candidate to provide the right kind of "straight talk" answer.

Some related posts on Campaign 2008:

• Hoping for a presidential town hall on crime and punishment
• (Too) little coverage of JEC hearing on US drug policy
• Upcoming JEC hearing on costs of US drug policy
• Why is Senator Jim Webb the only national figure focused on the prison economy?
• How the media can do better: ask the candidates tough crime and punishment questions
• FAMM suggests sentencing questions for the candidates
• Is ignorance bliss as Campaign 2008 ignores crime and punishment issues?

Persistent confusion over ex-felon voting rights

This local Alabama piece, headlined "State's felon voting law still unclear," tells a story that seems too common: even when states make efforts to restore the voting rights of former felons, legal confusion and uncertainty often reigns.  Here is the start of an interesting piece:

When Alabama made it easier for certain felons to regain the right to vote, it was hailed as a victory. But the law designed to make it easier for them to regain their voting rights has caused confusion and lawsuits -- because only crimes involving "moral turpitude" include disenfranchisement as part of the penalty.  The state has no definitive list of which specific crimes cost a person their voting rights and which don't, and it's not likely to get one before the November elections. 

Like most states, Alabama restricts the rights of felons to vote.  The Sentencing Project estimates some 250,000 people in the state are ineligible to vote because of a felony conviction. 

The new law was supposed to make it easier for felons who had done their time to regain their voting rights. Though an advocate for felon voting rights said the situation has improved since the law went into effect in 1993, the phone still rings off the hook every election year at the pardons and parole board with people asking questions.

As the piece suggests, The Sentencing Project is the place to go for information and resources about felon voting rights.  This March 2008 document from The Sentencing Project, titled "Felony Disenfranchisement Laws in The United States," documents some of the basics.  Unfortunately, in Alabama and many other states, the basic laws do not provide easy or complete answer to exactly who is and who is not eligible to vote.

Three more uneventful(?) lethal injections, including one with a political spin

As detailed in this DPIC list, Mississippi and Texas and Virginia all completed executions over the last few days, and I have not seen any reported problems with the lethal injection protocols used in these executions.  Perhaps all the Baze litigation has helped motivate state official to make extra sure that the lethal injection process is conducted in as carefully as possible.  I cannot recall reports of any serious problems with any of the 15 executions that have now taken place over the last three months since the Baze de facto moratorium was lifted after the Supreme Court's ruling.

Though technologically uneventful, this local report from Mississippi highlights that its execution had an interesting political spin as a result of the condemn's last words:

Before he died Wednesday evening, death row inmate Dale Leo Bishop apologized to his victim's family, thanked America and urged people to vote for Democratic presidential candidate Barack Obama. "For those who oppose the death penalty and want to see it end, our best bet is to vote for Barack Obama because his supporters have been working behind the scenes to end this practice," Bishop said....

A Lee County jury convicted Bishop in 2000 of participating in the murder of Marcus Gentry, who was beaten to death in December 1998 with a claw hammer. His body was found along a logging road near Saltillo.  Bishop did not deliver the fatal blows. He became only the eighth person put to death who did not directly kill his victim among the more than 1,100 executed since the U.S. Supreme Court reinstated the death penalty in 1976 -- not including contract killings.

Bishop's final words were: "God bless America.  It has been great living here.  That's all."  Bishop called Gentry's beating death on Dec. 10, 1998, a "senseless and needless act."  Earlier in the day, Bishop described the fatal beating as "a fight that had gone too far," state Corrections Commissioner Chris Epps said....

Bishop, who was mentally ill, asked a judge for the death penalty after he was convicted.... The other man convicted of Gentry's murder, Jessie Johnson, who was tried separately, is serving a life sentence. Protesters have used the disparity in the two sentences to illustrate the injustice they say is inherent in the death penalty.  Under Mississippi law, an accessory before the fact can be convicted of the same crime someone else commits.

I doubt the Obama campaign will be eager to embrace the endorsement of a mentally ill, now-executed defendant.  Nevertheless, the fact that Bishop coupled his political advocacy with a set of patriotic last words ("God bless America.  It has been great living here.") provides yet another example of intriguing realities that attend the final moments before a state imposes the ultimate punishment.

Senator Obama endorses death penalty for Osama Bin Laden

The CNN political ticker has this new report on the death penalty becoming a point of conversation on the campaign trail:

Barack Obama again said Friday he favors the death penalty for Osama bin Laden should the 9/11 mastermind be captured. In an interview with CNN's Fareed Zakaria, the presumptive Democratic presidential nominee said bin Laden's actions have justified capital punishment. "If he was captured alive, then we would make a decision to bring the full weight of not only U.S. justice, but world justice down on him," Obama said during the interview, the entirety of which is set to air Sunday at 1 p.m. ET.

"I am not a cheerleader for the death penalty — I think it has to be reserved for only the most heinous crimes," Obama also said. "But I certainly think plotting and engineering the death of 3,000 Americans justifies such an approach."

A new web pitch for Webb: (ex officio) US Sentencing Commissioner

I was disappointed to learn that Senator Jim Webb, the only national political figure who has shown a real commitment to questioning the efficacy of modern mass incarceration, has taken himself out of the VP sweepstakes.  So, I must now morph my web pitch for Webb as VP into a web pitch for Webb to become a member of the US Sentencing Commission.

Notably, many state sentencing commissions formally or informally include members of the state legislature, and research by Rachel Barkow and others suggests that the most successful commissions are those with active involvement by legislators.  Though the US Sentencing Commission is technically located in the judicial branch, I do not think there are strong constitutional or practical reasons why Senator Webb (or another elected politician) could not serve on the Commission (though perhaps there is a provision in federal law precluding this kind of dual service).

Notably, the members of the US Sentencing Commission have to be divided in their party affiliation and so Senator Webb would be a sound and plausible pick no matter who takes the White House this fall. 

Some related posts:

• Developing AG and USSC short lists
• Why is Senator Jim Webb the only national figure focused on the prison economy?
• (Too) little coverage of JEC hearing on US drug policy
• Congressional hearing on mass incarceration
• Hoping for a presidential town hall on crime and punishment
• Is ignorance bliss as Campaign 2008 ignores crime and punishment issues?
• Great TNR coverage of JEC hearing on mass incarceration
• A web pitch for a Webb VP pick

UPDATE:  Helpful commentors have noted that the Constitution would seem to get in the way of Senator Webb wearing two hats, so maybe he should just get an honorary or ex officio appointment to the USSC.

A Reagan era irony in Senator McCain's recent judge-bashing

Reflecting more on Senator John McCain's notable crime speech yesterday (first blogged here), I realized there was an interesting irony as a result of his praise for Ronald Reagan and his critique of the federal judiciary.  Let me explain.

McCain asserted that, because "President Reagan offered a different approach to criminal justice, ... over time America became a better, safer, and more just country."  Later, Senator McCain said that "nowhere is the influence of a president more critical to law enforcement than in the power of judicial nominations."  Then he lamented how "one badly reasoned opinion, by one overreaching judge, can undo [a conviction]....  Even worse, when such opinions issue from the highest court, they set a precedent for many more injustices, and they add one more obstacle to the work of law enforcement."

Though one can debate these assertions, what seems ironic and noteworthy is that the vast majority of the most significant and controversial pro-criminal-defendant rulings have comes from the pen of the two Justices now on the Court who were appointed by President Ronald Reagan: Justice Antonin Scalia and Anthony Kennedy.  Specifically, just this past Term, Justice Kennedy authored big wins for defendants in Kennedy and Boumediene, and Justice Scalia wrote broadly for defendants in Giles and Santos (and Heller).

Of course, two of the very biggest criminal defense SCOTUS wins in recent years — Blakely and Crawford — were both authored by Justice Scalia.  And a large number of recent rulings striking down death sentences (from Roper to Panetti to a bunch of Texas cases) were authored by Justice Kennedy.

Given that seven of the nine current Justices were appointed by Republican presidents and that 60% of lower federal court judges are also Republican appointments, it is especially sad and telling that Senator McCain still cannot resist bashing supposedly "soft-on-crime" federal judges.  Anyone working in the federal system knows that most federal judges are anything but "soft," and yet still their daily thankless work in defense of constitutional principles for criminal defendants gets attacked by the Republican presidential candidate.

Hey, big spender: John McCain's ambitious (and expensive?) crime-fighting agenda

The headline of this news report effective summarizes a big crime speech that Senator John McCain gave today: "McCain Talks Tough on Crime at Sheriffs' Convention."  The full text of McCain's speech is available here, and it has lots and lots of interesting aspects.  There some love for President Reagan's "focus[] on vigorous enforcement and stricter sentencing," and some hate for the Supreme Court's opinion in the Kennedy child rape decision in which, according to McCain, the Justices "substituted their judgment for that of the people of Louisiana."  (Notably, while bashing the Supreme Court for this opinion, Senator McCain leaves out the fact that a Reagan appointee wrote the Kennedy opinion, and that 3 of the 5 Justices in the Kennedy majority were Republican appointees.)

Though I could say a lot about all the intriguing aspects of Senator McCain's crime speech, I find most interesting his willingness to pledge federal dollars for ambitious crime-fighting programs.  Here are just a few snippets of the speech that suggest a President McCain is ready and willing to spend federal tax dollars on various crime-fighting initiatives:

To meet all of these [new crime] challenges, and others, you will need assistance, critical resources, and new technologies that often only the federal government can provide....

To protect our energy supply, air and rail transport, banking and financial services, we need to invest far more in the federal task of cyber security....

[A]s president, I will expand the Criminal Alien Program. We will require that the federal government assume more of the costs to deport and detain criminal aliens -- because this is a problem of the federal government's own making....

Ex-convicts need more than a few bucks and a bus ticket out of town.  Many will need job training, a place to live, mentors, family counseling, and much more. Beyond government, there are churches and community groups all across our country that stand ready to help even more. And these groups will have the committed support of my administration.

There is a lot more to the speech than just these pledges of federal support, and I encourage everyone to read the full text of the interesting speech and provide other reactions in the comments.

Will any Prez candidate promise to get us out of a failed war ... on drugs?

Though many remain eager to use gun debates as a political talking point in the election season, I would like the talk to be about a failed war that has lasted far too long, has cost lots of money and time, and seems to be of little efficacy.  Of course, the war I am talking about is the never-ending "war on drugs."  As detailed in this new Science Daily entry, headlined "United States Has Highest Level Of Illegal Cocaine And Cannabis Use," the so-called "war on drugs" has failed to reduce illegal drug use in the United States:

A survey of 17 countries has found that despite its punitive drug policies the United States has the highest levels of illegal cocaine and cannabis use. The study, by Louisa Degenhardt (University of New South Wales, Sydney, Australia) and colleagues, is based on the World Health Organization's Composite International Diagnostic Interview (CIDI).

The full article can be accessed at this link.

Of course, even though the so-called "war on drugs" apparently has not be effective at driving down illegal drug use, it does appear to have effectively increased our prison populations and the amount of taxpayer dollars spent on a wide array of criminal justice institutions in federal and systems.  Too bad that a lot of this money is taken away from education and other government services intended to help, rather than hurt, citizens in need.

As regular readers know, Senator Jim Webb is paying attention to these issues and understands that a new approach is needed.  Do any other national politicians?  Will anyone besides Senator Webb have the courage to ask hard questions about what has been won and lost in the war on drugs?

Some recent related posts:

• Hoping for a presidential town hall on crime and punishment
• New study urging drug sentencing alternatives in New Jersey to save $$$
• (Too) little coverage of JEC hearing on US drug policy
• Upcoming JEC hearing on costs of US drug policy
• Why is Senator Jim Webb the only national figure focused on the prison economy?
• A web pitch for a Webb VP pick
• How the media can do better: ask the candidates tough crime and punishment questions
• FAMM suggests sentencing questions for the candidates
• Is ignorance bliss as Campaign 2008 ignores crime and punishment issues?
• Aren't extreme sentences and mass incarceration a "tired philosophy that trusts in government more than people"?
• Politics and the war on drugs
• What will the new libertarian presidential candidate say about mass incarceration and the drug war?
• Will the 2008 Prez candidates ever seriously discuss modern incarceration realities?
• New Sentencing Project report on the "war on drugs"

Is Obama's reaction to SCOTUS rulings an example of new or old politics?

I have not blogged the political impact of the Supreme Court's work in Kennedy and Heller, in part because I want to focus on theory and dotrine before turning to politics.  Nevertheless, this effective Time article, headlined "Obama's Supreme Move to the Center," captures the intriguing developing political story surrounding the Supreme Court's recent work.  Here is how the piece starts:

When the Supreme Court issues rulings on hot-button issues like gun control and the death penalty in the middle of a presidential campaign, Republicans could be excused for thinking they'll have the perfect opportunity to paint their Democratic opponent as an out-of-touch social liberal. But while Barack Obama may be ranked as one of the Senate's most liberal members, his reactions to this week's controversial court decisions showed yet again how he is carefully moving to the center ahead of the fall campaign.

On Wednesday, after the Supreme Court ruled that the death penalty was unconstitutional in cases of child rape, Obama surprised some observers by siding with the hardline minority of Justices Scalia, Thomas, Roberts and Alito.  At a press conference after the decision, Obama said, "I think that the rape of a small child, six or eight years old, is a heinous crime and if a state makes a decision that under narrow, limited, well-defined circumstances the death penalty is at least potentially applicable, that that does not violate our Constitution."

Then Thursday, after Justice Scalia released his majority opinion knocking down the city of Washington's ban on handguns, Obama said in a statement, "I have always believed that the Second Amendment protects the right of individuals to bear arms, but I also identify with the need for crime-ravaged communities to save their children from the violence that plagues our streets through common-sense, effective safety measures.  The Supreme Court has now endorsed that view."

Why is Senator Jim Webb the only national figure focused on the prison economy?

I find it so very exciting that Senator Jim Webb continue to question the US incarceration rate and to explore the economic consequences of mass incarceration and criminal justice drug policies.  Senator Webb's congressional hearing on these topics this week is nicely reviewed in this Nation piece, and it ends with an encouraging report that Senator Webb is just getting revved up:

With this hearing, Senator Webb continues to lead a much overdue Congressional reaction to the US's failing drug policy. Indeed two colleagues on the committee, Senator Amy Klobuchar and Representative Maurice Hinchey praised Senator Webb for his "courage." And don't expect the Senator to back off any time soon.  His press secretary, Kimberly Hunter, e-mailed me following the hearing, "Senator Webb has been interested in the US incarceration rate and drug policies since he was a journalist studying the Japanese prison system in 1984.... [This] issue is far from popular but needs to be debated in the public view.  With every hearing, his efforts help to raise the awareness of the American people and draw attention to a problem that is easier to ignore then address head-on."

Also encouraging is that, as detailed in this new Wall Street Journal article, Senator Webb may soon have an even bigger stage from which to draw attention to these issues.  I sincerely hope that Senator Webb will continue to make these issues a priority even if he becomes Senator Obama's VP choice.

What mystifies me, however, is the failure of any other national politicians to talk seriously about these issues.  As Senator Webb is rightfully highlighting, mass incarceration and failed US drug policies are very, very costly for national, state and local governments.  I think modern bloated criminal justice systems are a telling example of big government gone bad.  And yet, with all the government bashing and economic hand-wringing, it seem that Senator Webb is still among a rare few politicians with the courage to explore important policy realities without an undue and misguided concern about political rhetoric.

Some recent related posts:

• (Too) little coverage of JEC hearing on US drug policy
• Upcoming JEC hearing on costs of US drug policy
• Seeking reports on JEC hearing on US drug policy this morning
• A web pitch for a Webb VP pick
• Hoping for a presidential town hall on crime and punishment
• How the media can do better: ask the candidates tough crime and punishment questions
• FAMM suggests sentencing questions for the candidates
• Is ignorance bliss as Campaign 2008 ignores crime and punishment issues?
• Aren't extreme sentences and mass incarceration a "tired philosophy that trusts in government more than people"?
• Politics and the war on drugs
• What will the new libertarian presidential candidate say about mass incarceration and the drug war?
• Will the 2008 Prez candidates ever seriously discuss modern incarceration realities?

Soft-on-crime Prez mud-slinging gets off to a telling start

And so it begins.  This effective Los Angeles Times article, headlined "Opening shot in the battle over crime," reports that the man behind the (in)famous Willie Horton ad is going back to the soft-on-crime playbook two decades later.  Here are some details:

On a website he calls ExposeObama.com, Floyd G. Brown, the producer of the Willie Horton ad that helped defeat Michael S. Dukakis in 1988, is preparing an encore.

Brown is raising money for a series of ads that he says will show Sen. Barack Obama (D-Ill.) to be out of touch on an issue of fundamental concern to voters: violent crime. One spot already making the rounds on the Internet attacks the presumptive Democratic nominee for opposing a bill while he was a state legislator that would have extended the death penalty to gang-related murders.

"When the time came to get tough, Obama chose to be weak....  Can a man so weak in the war on gangs be trusted in the war on terror?" the ad asks....

Obama's campaign, and some independent observers, say Brown's work is misleading at best. FactCheck.org, a political watchdog, has called the death penalty ad -- which suggests that Obama's vote made him responsible for the gang-related deaths of three youths -- "reprehensible misrepresentation."

The legislation was largely symbolic, because many gang killers were already eligible for death under state law.  It also was running up against concern over the administration of the state death penalty law. That concern ultimately led to a statewide moratorium on executions.  The Republican governor at the time, George Ryan, eventually vetoed the legislation.

Obama supporters take exception to the notion that their candidate is weak on crime.  "I thought ... he tried to strike a decent balance between solid law enforcement and protecting the rights of individuals," said Richard A. Devine, the Cook County state's attorney, who leads the largest prosecutor office in Illinois. In the Legislature, Obama led the push for mandatory taping of interrogations and confessions to ensure fair treatment of the accused.  Devine said the gang-related death-penalty bill was "really not moving us forward at all."

Obama spokesman Ben LaBolt, asked about the ad, said: "The Republicans will soon realize that trying to divert attention from McCain's plans to continue George Bush's failed policies on Iraq and the economy by launching long ago debunked attacks on Obama won't work.  Sen. Obama has a record that demonstrates he is both tough and smart on crime."

Hoping for a presidential town hall on crime and punishment

I view John McCain's proposed weekly town hall debates as a fantastic idea, and one that ought to help ensure that some crime and punishment issues get discussed during the campaign.  Indeed, I am hoping that somehow one of the town halls will be focused specifically on crime and punishment issues (and perhaps include Libertarian candidate Bob Barr, who says he wants in).

In a number of prior posts (e.g., here and here), I have highlighted a variety of questions that should be presented to the candidates.  I am not sure how to make sure these question come up in a town hall setting, but here are a few more very simple ones that merit answers (and could be very revealing):

• What is your view of the President's clemency power and how might you utilize this power during your administration?

• What is your view of the death penalty and do you think the President has an important role in making sure state administration of this punishment is fair and effective?

• What is your view of the record incarceration rate in the United States and do you think the President has an important role in doing something about mass incarceration?

Some related posts on Campaign 2008:

• How the media can do better: ask the candidates tough crime and punishment questions
• FAMM suggests sentencing questions for the candidates
• Is ignorance bliss as Campaign 2008 ignores crime and punishment issues?
• Stuntz nails (some) reasons why Democrats are perhaps most responsible for modern mass incarceration
• Aren't extreme sentences and mass incarceration a "tired philosophy that trusts in government more than people"?
• Politics and the war on drugs
• What will the new libertarian presidential candidate say about mass incarceration and the drug war?
• Is there growing public concern with sentencing and prison reform?
• Will the 2008 Prez candidates ever seriously discuss modern incarceration realities?

Passage from McClellan's book on the Libby commutation

Thanks to this post at TalkLeft I saw this post from Christopher Bateman at Vanity Fair titled "McClellan Disappointed (and McCain Still Mum) About Libby Commutation."  Here are highlights:

Scott McClellan’s bombshell book... [includes] a forceful denunciation of President Bush’s decision to commute Scooter Libby’s sentence after his conviction for perjury and obstruction of justice in the Valerie Plame affair:

It’s … clear to me that Scooter Libby was guilty of the perjury and obstruction crimes for which he was convicted. When the president commuted Libby’s prison sentence and thereby protected him from serving even one day behind bars, I was disappointed.  This kind of special treatment undermines our system of justice…. President Bush certainly has the right and the power to commute Libby’s sentence.  But in choosing to do so, he sent an unfortunate message to America and the world — that in the United States criminal behavior on behalf of a political cause may go unpunished if those who support that cause have the power to make it happen.

The Vanity Fair post goes on to not that John McCain was spoke out on behalf of Libby in 2007 but that "McCain has declined to speak about the commutation, and his campaign has not returned VF Daily’s request to comment on McClellan’s statements." Needless to say, I think (along surely with folks at Pardon Power) that the Libby commutation should be a campaign issue in the weeks and months ahead.

Some related posts:

• Bush's reasons for Libby's commutation ... will others now see similar compassion from Bush and his Justice Department?
• Latest FSR issue on "Learning from Libby"
• The inside backstory on the Libby commutation
• Reflections on "Bush the merciful"
• Few giving the President sentencing thanks
• Pardon politics and the 2008 campaign

More proof all hot political issues become federal sentencing matters

Two very different items in this news confirms what I love to tell my students: every hot political issue will in some way and at some time become a sentencing matter.  Here is today's evidence:

1.  The New York Times has this big story suggesting that the Bush Administration is now eager to make federal crimes out of immigration cases that had been previously dealt with civilly.  Here is how the story starts:

In temporary courtrooms at a fairgrounds here, 270 illegal immigrants were sentenced this week to five months in prison for working at a meatpacking plant with false documents.  The prosecutions, which ended Friday, signal a sharp escalation in the Bush administration’s crackdown on illegal workers, with prosecutors bringing tough federal criminal charges against most of the immigrants arrested in a May 12 raid.

Until now, unauthorized workers have generally been detained by immigration officials for civil violations and rapidly deported.  The convicted immigrants were among 389 workers detained at the Agriprocessors Inc. plant in nearby Postville in a raid that federal officials called the largest criminal enforcement operation ever carried out by immigration authorities at a workplace.

Matt M. Dummermuth, the United States attorney for northern Iowa, who oversaw the prosecutions, called the operation an “astonishing success.” Claude Arnold, a special agent in charge of investigations for Immigration and Customs Enforcement, said it showed that federal officials were “committed to enforcing the nation’s immigration laws in the workplace to maintain the integrity of the immigration system.”

The unusually swift proceedings, in which 297 immigrants pleaded guilty and were sentenced in four days, were criticized by criminal defense lawyers, who warned of violations of due process. Twenty-seven immigrants received probation.  The American Immigration Lawyers Association protested that the workers had been denied meetings with immigration lawyers and that their claims under immigration law had been swept aside in unusual and speedy plea agreements.

2.  The Tuscaloosa News has this notable commentary noting the First Amendment issue being raised in a high-profile criminal appeal:

When former Gov. Don Siegelman called Thursday to get my email address so he could sent a copy of his 99-page appeal of his federal conviction on fraud charges, he said to pay close attention to the fifth argument his team of attorneys were making. It maintains that the court violated his First Amendment rights by increasing his sentence to more than seven years "based on out-of-court statements on matters of grave concern."

Essentially, what the former governor, who spent nine months in prison before being sprung by the 11th Circuit Court of Appeals on bond, says is that presiding and sentencing Federal Judge Mark Fuller punished him for speaking out against what he saw were injustices in his case and the political machinations surrounding it.

What will the new libertarian presidential candidate say about mass incarceration and the drug war?

CNN is reporting here that former Republican Representative Bob Barr "formally jumped into the White House race Monday as a candidate for the Libertarian Party's presidential nomination."  Here's more:

Barr, the onetime darling of conservatives who led the impeachment fight against former President Bill Clinton, said he is running because voters want a choice beyond the two political parties. "They believe that America has more and better to offer than what the current political situation is serving up to us," he said Monday at the National Press Club in Washington. "The reason for that is very simple, they believe in America as I believe in America.  We believe in an America that is not and should not be and should never be driven by fear as current policies on behalf of both parties are in this country."

I consider mass incarceration and the drug war to be two great examples of policies embraced by both parties which are "driven by fear," and I sincerely believe that "America has more and better to offer" on these fronts.  Notably, this Atlantic.com post notes that Barr's campaign slogan is "Liberty for America."  This slogan could certainly foreshadow opposition to mass incarceration and the drug war in modern America.

Disappointingly, what appears to be Barr's official website has very little discussion of criminal justice issues.  However, these quotes from this "Issues" page on the website hint that Barr might now be the presidential candidate most likely to complain about extreme government power in the criminal justice system:

"The nation’s founders drafted the Constitution to sharply limit the federal government’s powers. The horrors perpetrated by the many collectivist tyrannies of the 20th Century demonstrate that the danger of government, any government, violating individual liberty is greater today than when America was founded."...

"The sustained government attack on the sanctity of the rights of the individual, including their right to be secure in their privacy and property, has created a moral and Constitutional crisis. America’s elected officials at all levels must renew their respect for the law and work to protect the rights of individuals."...

"Finally, an increasingly intrusive Nanny State is watching over our nation, meddling in the lives of its citizens.  New measures, often rushed through legislatures and regulatory agencies with little consideration or thought, seek to control ever more aspects of people's lives....  It is time to again trust individuals to make their own decisions. At the core of libertarianism is a trust in and respect for the personal choices of every individual. All Americans should be free to decide what is best for themselves and their families." 

Some related general posts on Campaign 2008:

• Will the 2008 Prez candidates ever seriously discuss modern incarceration realities?
• How the media can do better: ask the candidates tough crime and punishment questions
• Is ignorance bliss as Campaign 2008 ignores crime and punishment issues?
• Stuntz nails (some) reasons why Democrats are perhaps most responsible for modern mass incarceration
• Aren't extreme sentences and mass incarceration a "tired philosophy that trusts in government more than people"?
• Politics and the war on drugs
• Is there growing public concern with sentencing and prison reform?
• FAMM suggests sentencing questions for the candidates

A day to focus on an execution and politics

While most of the media and political world will be focused on voting in Indiana and North Carolina, this new AP article spotlights that death penalty observers will be focused on another state:

Georgia moved forward with preparations to execute a man convicted of killing his girlfriend, who on Tuesday night could become the first inmate put to death since the U.S. Supreme Court upheld the constitutionality of lethal injection.  Barring a last-minute reprieve from the courts, William Earl Lynd will be put to death at 7 pm, making him the first prisoner executed since September, when the high court took up a challenge to lethal injection and effectively halted all executions nationwide for seven months.

For anyone who might be eager to combine their interests in politics and the death penalty, I noticed this new article in the April 2008 Virginia Law Review titled "The Supreme Court and the Politics of Death."  Here is the abstract:

This article explores the evolving role of the U.S. Supreme Court in the politics of death. By constitutionalizing the death penalty in the 1970s, the Supreme Court unintentionally set into motion political forces that have seriously undermined the Court's vision of a death penalty that is fairly administered and imposed only on the worst offenders. With the death penalty established as a highly salient political issue, politicians — legislators, prosecutors, and governors — have strong institutional incentives to make death sentences easier to achieve and carry out.  The result of this vicious cycle is not only more executions, but less reliable determinations of who truly deserves the ultimate sanction.

The Supreme Court has recently begun to chart a different — and more promising — approach to death penalty reform.  In two key areas, the Court has recently reinterpreted prior constitutional doctrines in ways that seem designed to counteract death's politics.  These rules determine the type of offenses for which death is a "cruel and unusual" sanction (the Eighth Amendment's capital proportionality standard) and the quality of representation defendants must receive in capital cases (the Sixth Amendment's guarantee of effective assistance of counsel).  Each of these rules has been transformed from doctrines that had little effect on the administration of the death penalty into potent weapons for counteracting the politics of death and promoting the fairness and rationality of the capital sentencing process.

Cooperation discount leads to buzz about DOJ investigating Hill happenings

This item from Politico highlights how a massive criminal justice system that encourages cooperation can get a lot of persons nervous real fast, even on Capitol Hill:

The news was buried deep in a Page Two story in Saturday’s Washington Post, but it’s gotten the city’s lawyers chattering.  The Department of Justice, according to a confidential source in the Post article, is investigating whether members of Congress have been improperly using staff and office resources.

The Justice Department declined to comment, but that hasn’t diminished the buzz on Capitol Hill. “Nobody’s heard anything,” said Andrew Herman, a congressional ethics attorney who by Monday morning had already fielded a number of calls from nervous lawyers.  “There’s just concern that this could become another House banking investigation.”  If Justice is, in fact, looking into the way that members of Congress use taxpayer dollars, Herman said the concern might be justified.  “I’m sure that there are certainly times that staff is used inappropriately. How could there not be?” he said, though he added that he had no specific examples of irregularities.

It’s unclear how serious the investigation is or whether there actually is an investigation. In a story largely devoted to the sentencing of Laura I. Flores, a former staffer for Reps. Jane Harman (D-Calif.) and Neil Abercrombie (D-Hawaii), the Post reported that “prosecutors petitioned to reduce [Flores’] penalty in exchange for help with an inquiry into whether lawmakers used congressional staff members and resources to support their political campaigns, according to a source familiar with the case.” Flores was sentenced on Friday to six months in prison after pleading guilty in January to wire fraud.

Will the 2008 Prez candidates ever seriously discuss modern incarceration realities?

I have largely given up my hope that the 2008 presidential campaign will even give sustained attention to crime and punishment issues.  Nevertheless, this morning's front-page Washington Post article highlights how prison spending is not just a crime and punishment issue:

Between 1987 and last year, states increased their higher education spending by 21 percent, in inflation-adjusted dollars, according to the Pew Center on the States.  During the same period, spending on corrections jumped by 127 percent.  In the Northeastern states, according to the Pew report, prison spending over the past 20 years has risen 61 percent, while higher education spending has declined by 5.5 percent....

Michigan has become one of the few states that actually spend more on prisons than on higher education -- about $2 billion for prisons, and $1.9 billion in state aid to its 15 public universities and 28 community colleges.  "It's insane," said Barbara Levine of the Citizens Alliance on Prisons and Public Spending in Lansing. "The governor is always talking about how we need to be high tech.  But these days, the best career opportunity is to get a job as a prison guard."...

"You've got two decades of failed policies," said Laura Sager a consultant in Michigan for Families Against Mandatory Minimums. She said mandatory sentencing laws and tough penalties for drug offenses in the 1980s "bloated prisons and prison populations, and the taxpayer is paying a very high price."  Now with states struggling with budget deficits, she said, "you have pressures that make it palatable to take a second look."

It is sad and telling that expensive mass incarceration realities, which have been building for years, are only now starting to get sustained major media attention.  It is even sadder that the media and the pundits have consistently failed to ask the 2008 presidential candidates any serious (or even not-so-serious) questions about mass incarceration and whether anyone has a plan to cut taxes by effectively and strategically cutting prison populations.

Some related general posts on Campaign 2008:

• How the media can do better: ask the candidates tough crime and punishment questions
• FAMM suggests sentencing questions for the candidates
• Stuntz nails (some) reasons why Democrats are perhaps most responsible for modern mass incarceration
• Politics and the war on drugs 
• Should criminal justice reform be the new civil rights movement?
• Is there growing public concern with sentencing and prison reform?
• Is ignorance bliss as Campaign 2008 ignores crime and punishment issues?

Some related posts on specific candidates' positions and speeches:

• A retroactive litmus test on leading Democratic candidates
• Is Senator Clinton to the right of Justice Scalia on sentencing issues?
• Senator Clinton making a campaign offensive on crime
• Aren't extreme sentences and mass incarceration a "tired philosophy that trusts in government more than people"?
• So much in (and missing from) Senator Clinton's anti-crime proposal
• "Where candidates stand on crime, death penalty"
• Clinton and Obama, crime and punishment
• Race, class and criminal justice in campaign 2008