Like other law enforcement officials in the state, Volusia County Sheriff Ben Johnson is sowing undue fear and misinformation about legislative proposals that would reform the state's overly harsh and unsustainably costly prison system. Johnson is following the lead of Brevard County Sheriff Jack Parker, who claims -- wrongly -- that "Florida is funding prisons less and less" while preparing to release offenders early.
Since 2001, when it was at $1.62 billion, the Department of Corrections' budget has increased by 50 percent. It's at $2.43 billion today, a 5.7 percent increase over last year's $2.3 billion. The department's budget devours almost 10 percent of the state's general revenue to maintain a total payroll of 30,500 that keeps 100,000 inmates in prison -- a 3-to-1 per-inmate ratio. That's about eight times better than the state's teacher-pupil ratio. Despite a crime rate that has fallen steadily through the decade, the inmate population has risen 46 percent since 2001.
Criminals aren't getting more violent or committing more crimes. The state's incarceration laws have been made harsher since the mid-1980s (when Florida abolished parole) and the 1990s (when Florida harshed up mandatory sentences on adults and youthful offenders and ended the release of any state prison inmate before he or she serves at least 85 percent of a sentence). Yet, criminologists cast serious doubt on the effectiveness of harsher sentences, which contradict the principle of rehabilitation. It's called a department of corrections, not a department of punishment.
At its current pace, the Florida prison system will need to build, at least, 15 more prisons in the next five years, a $2 billion expense before the cost of running them kicks in. It would be folly. Legislators are looking for a better way. Texas is their example. Texas sentences mirrored Florida's. So did its exploding population. So, Texas changed its corrections approach, focusing especially on drug rehabilitation and education for inmates and sustained rehabilitation programs after release. (Criminologists point to drug rehab's effectiveness: Just 6 percent of violent offenders who have undergone rehab recommit crimes after their release, compared with 33 percent of those who don't get rehab. Yet, in Florida this year, the prison system's drug-treatment programs were cut by $6.2 million, education programs by $3.4 million.)
Texas' new approach worked. The state's prison population steadied. So did the corrections budget. The state's crime rate didn't spike. Florida lawmakers are introducing bills that would replicate some of those approaches, although the focus is more on reversing harsh sentences (still a worthy objective) than funding rehab programs.
Writing on the Sheriff's Office's Web site, Johnson wants residents to oppose "a particularly bad proposal that would grant early release to certain inmates 50-years-old or older as long as they have already served at least 25 years of their sentence." He is also building opposition to another proposal that "would reduce the sentence of dangerous youthful offenders under certain circumstances" -- offenders 15 or younger who were convicted as adults.
Johnson makes it sound as if violent offenders are never released (or should never be released) from prison. He should have a look at Department of Corrections reports. Better yet, he should encourage his readers to do so. Last August alone, 3,073 offenders were released from Florida prisons. Of those, 814, or 26.5 percent, were violent offenders. On average, those violent offenders served 53 months. Johnson says, "This is not the type of person we want roaming our streets again." But every prison system in the nation eventually releases a portion of its violent offenders for the obvious reason that life terms are rare. Johnson also makes it sound as if the proposals, if enacted, would result in immediate releases. Not so. Prisoners would have to petition for their release and have their cases reviewed one by one. It's a restoration of parole by other means.
The question isn't whether they should be released, but when. For two decades Florida opted for longer sentences and fewer second chances, without appreciable results. Those laws are finally coming in for their own corrections.
An Editorial from the Daytona News Journal published 12/29/09
Tuesday, December 29, 2009
Overtime served Reforming Florida's violent incarceration mentality
Like other law enforcement officials in the state, Volusia County Sheriff Ben Johnson is sowing undue fear and misinformation about legislative proposals that would reform the state's overly harsh and unsustainably costly prison system. Johnson is following the lead of Brevard County Sheriff Jack Parker, who claims -- wrongly -- that "Florida is funding prisons less and less" while preparing to release offenders early.
Since 2001, when it was at $1.62 billion, the Department of Corrections' budget has increased by 50 percent. It's at $2.43 billion today, a 5.7 percent increase over last year's $2.3 billion. The department's budget devours almost 10 percent of the state's general revenue to maintain a total payroll of 30,500 that keeps 100,000 inmates in prison -- a 3-to-1 per-inmate ratio. That's about eight times better than the state's teacher-pupil ratio. Despite a crime rate that has fallen steadily through the decade, the inmate population has risen 46 percent since 2001.
Criminals aren't getting more violent or committing more crimes. The state's incarceration laws have been made harsher since the mid-1980s (when Florida abolished parole) and the 1990s (when Florida harshed up mandatory sentences on adults and youthful offenders and ended the release of any state prison inmate before he or she serves at least 85 percent of a sentence). Yet, criminologists cast serious doubt on the effectiveness of harsher sentences, which contradict the principle of rehabilitation. It's called a department of corrections, not a department of punishment.
At its current pace, the Florida prison system will need to build, at least, 15 more prisons in the next five years, a $2 billion expense before the cost of running them kicks in. It would be folly. Legislators are looking for a better way. Texas is their example. Texas sentences mirrored Florida's. So did its exploding population. So, Texas changed its corrections approach, focusing especially on drug rehabilitation and education for inmates and sustained rehabilitation programs after release. (Criminologists point to drug rehab's effectiveness: Just 6 percent of violent offenders who have undergone rehab recommit crimes after their release, compared with 33 percent of those who don't get rehab. Yet, in Florida this year, the prison system's drug-treatment programs were cut by $6.2 million, education programs by $3.4 million.)
Texas' new approach worked. The state's prison population steadied. So did the corrections budget. The state's crime rate didn't spike. Florida lawmakers are introducing bills that would replicate some of those approaches, although the focus is more on reversing harsh sentences (still a worthy objective) than funding rehab programs.
Writing on the Sheriff's Office's Web site, Johnson wants residents to oppose "a particularly bad proposal that would grant early release to certain inmates 50-years-old or older as long as they have already served at least 25 years of their sentence." He is also building opposition to another proposal that "would reduce the sentence of dangerous youthful offenders under certain circumstances" -- offenders 15 or younger who were convicted as adults.
Johnson makes it sound as if violent offenders are never released (or should never be released) from prison. He should have a look at Department of Corrections reports. Better yet, he should encourage his readers to do so. Last August alone, 3,073 offenders were released from Florida prisons. Of those, 814, or 26.5 percent, were violent offenders. On average, those violent offenders served 53 months. Johnson says, "This is not the type of person we want roaming our streets again." But every prison system in the nation eventually releases a portion of its violent offenders for the obvious reason that life terms are rare. Johnson also makes it sound as if the proposals, if enacted, would result in immediate releases. Not so. Prisoners would have to petition for their release and have their cases reviewed one by one. It's a restoration of parole by other means.
The question isn't whether they should be released, but when. For two decades Florida opted for longer sentences and fewer second chances, without appreciable results. Those laws are finally coming in for their own corrections.
Since 2001, when it was at $1.62 billion, the Department of Corrections' budget has increased by 50 percent. It's at $2.43 billion today, a 5.7 percent increase over last year's $2.3 billion. The department's budget devours almost 10 percent of the state's general revenue to maintain a total payroll of 30,500 that keeps 100,000 inmates in prison -- a 3-to-1 per-inmate ratio. That's about eight times better than the state's teacher-pupil ratio. Despite a crime rate that has fallen steadily through the decade, the inmate population has risen 46 percent since 2001.
Criminals aren't getting more violent or committing more crimes. The state's incarceration laws have been made harsher since the mid-1980s (when Florida abolished parole) and the 1990s (when Florida harshed up mandatory sentences on adults and youthful offenders and ended the release of any state prison inmate before he or she serves at least 85 percent of a sentence). Yet, criminologists cast serious doubt on the effectiveness of harsher sentences, which contradict the principle of rehabilitation. It's called a department of corrections, not a department of punishment.
At its current pace, the Florida prison system will need to build, at least, 15 more prisons in the next five years, a $2 billion expense before the cost of running them kicks in. It would be folly. Legislators are looking for a better way. Texas is their example. Texas sentences mirrored Florida's. So did its exploding population. So, Texas changed its corrections approach, focusing especially on drug rehabilitation and education for inmates and sustained rehabilitation programs after release. (Criminologists point to drug rehab's effectiveness: Just 6 percent of violent offenders who have undergone rehab recommit crimes after their release, compared with 33 percent of those who don't get rehab. Yet, in Florida this year, the prison system's drug-treatment programs were cut by $6.2 million, education programs by $3.4 million.)
Texas' new approach worked. The state's prison population steadied. So did the corrections budget. The state's crime rate didn't spike. Florida lawmakers are introducing bills that would replicate some of those approaches, although the focus is more on reversing harsh sentences (still a worthy objective) than funding rehab programs.
Writing on the Sheriff's Office's Web site, Johnson wants residents to oppose "a particularly bad proposal that would grant early release to certain inmates 50-years-old or older as long as they have already served at least 25 years of their sentence." He is also building opposition to another proposal that "would reduce the sentence of dangerous youthful offenders under certain circumstances" -- offenders 15 or younger who were convicted as adults.
Johnson makes it sound as if violent offenders are never released (or should never be released) from prison. He should have a look at Department of Corrections reports. Better yet, he should encourage his readers to do so. Last August alone, 3,073 offenders were released from Florida prisons. Of those, 814, or 26.5 percent, were violent offenders. On average, those violent offenders served 53 months. Johnson says, "This is not the type of person we want roaming our streets again." But every prison system in the nation eventually releases a portion of its violent offenders for the obvious reason that life terms are rare. Johnson also makes it sound as if the proposals, if enacted, would result in immediate releases. Not so. Prisoners would have to petition for their release and have their cases reviewed one by one. It's a restoration of parole by other means.
The question isn't whether they should be released, but when. For two decades Florida opted for longer sentences and fewer second chances, without appreciable results. Those laws are finally coming in for their own corrections.
Sunday, December 13, 2009
Why are innocent persons sentenced to prison?
It took 35 years for the criminal justice system to face the fact that it had wronged James Bain, a man convicted of the heinous crime of raping a 9-year-old boy in Lake Wales and sentenced to a lifetime behind bars. For nearly a decade Bain was denied requests for a DNA test on the evidence. It took a state attorney finally agreeing this year for the test to be done. The results ruled Bain out as the perpetrator.
Bain joins at least 11 other Floridians who were convicted of crimes and imprisoned only to be later found factually innocent of the offense in recent years. The revolution in DNA testing makes it possible to identify these miscarriages of justice with absolute certainty, but it doesn't say anything about how these errors occurred. Florida needs a commission to study these cases, breaking them down to see the system's flaws, just like the National Transportation Safety Board analyzes every plane crash.
On Friday, a group of renowned attorneys that includes former Florida Supreme Court justices, former presidents of the American Bar Association and former Florida Bar leaders, petitioned Florida Supreme Court Chief Justice Peggy Quince for the formation of an actual innocence commission. The request is modeled after a similar undertaking in North Carolina that brought together judges, police, prosecutors, defense lawyers, victims' advocates and academics for a two-year review of procedures in the criminal justice system. The commission isolated factors that helped lead to wrongful convictions and recommended changes.
Bain was convicted largely on the strength of the victim's eyewitness testimony. That sort of account by eyewitnesses has incredible power to sway juries even though it is notoriously faulty. Bain's blood type didn't match the semen found on the victim's underpants. He also had an alibi: Bain and his sister had been at home watching television when the crime occurred. But a jury convicted him anyway. Bain was 19 years old at the time and had no prior criminal record.
An innocence commission would comprehensively evaluate investigatory and court procedures, including those for eyewitness identification in cases like Bain's, and suggest new safeguards. According to the Innocence Project of Florida, witness misidentification contributed to almost 80 percent of the 245 convictions later overturned by DNA testing nationwide. (The Innocence Project works to find and free innocent people imprisoned in Florida. An actual innocence commission would look at established cases of wrongful conviction to determine what went wrong within the criminal justice system.)
The timing of a commission is important. Florida needs to know why it sends innocent people to prison, whether through individual errors or systemic problems. With DNA testing leading to exonerations of the wrongly convicted with increasing frequency, this is an ideal moment for public acceptance of a commission and its findings.
Once these old cases of injustice proved through DNA testing are exhausted there won't be another opportunity to demonstrate actual innocence with the same level of certainty. But there are still plenty of crimes such as embezzlement, where wrongful convictions occur but DNA is typically not part of the proof. In order to prevent these kinds of injustices, the nuts and bolts of the criminal justice system need reform.
Talbot "Sandy" D'Alemberte, former Florida State University president and a former ABA president, is behind the push for a commission. He points out that the state high court has regularly investigated administration of justice issues. Earlier efforts include commissions looking into racial bias in Florida courts, the impact of cameras in state courts and whether attorneys should be required to report their pro bono hours. An innocence commission falls within the court's scope of duties, and its establishment was one of the lead recommendations of a 2006 report from the ABA Florida Death Penalty Assessment Team. It's time to get started.
When an innocent person goes to prison it is a tragedy for society as well as for the wrongfully convicted and his family. His life is ruined, taxpayers pay for his upkeep and the real criminal is still at large. Florida needs to know how and why these mistakes happen so another innocent person doesn't spend most of his adult life behind bars.
A St. Petersburg Times Editorial Dec 09
Bain joins at least 11 other Floridians who were convicted of crimes and imprisoned only to be later found factually innocent of the offense in recent years. The revolution in DNA testing makes it possible to identify these miscarriages of justice with absolute certainty, but it doesn't say anything about how these errors occurred. Florida needs a commission to study these cases, breaking them down to see the system's flaws, just like the National Transportation Safety Board analyzes every plane crash.
On Friday, a group of renowned attorneys that includes former Florida Supreme Court justices, former presidents of the American Bar Association and former Florida Bar leaders, petitioned Florida Supreme Court Chief Justice Peggy Quince for the formation of an actual innocence commission. The request is modeled after a similar undertaking in North Carolina that brought together judges, police, prosecutors, defense lawyers, victims' advocates and academics for a two-year review of procedures in the criminal justice system. The commission isolated factors that helped lead to wrongful convictions and recommended changes.
Bain was convicted largely on the strength of the victim's eyewitness testimony. That sort of account by eyewitnesses has incredible power to sway juries even though it is notoriously faulty. Bain's blood type didn't match the semen found on the victim's underpants. He also had an alibi: Bain and his sister had been at home watching television when the crime occurred. But a jury convicted him anyway. Bain was 19 years old at the time and had no prior criminal record.
An innocence commission would comprehensively evaluate investigatory and court procedures, including those for eyewitness identification in cases like Bain's, and suggest new safeguards. According to the Innocence Project of Florida, witness misidentification contributed to almost 80 percent of the 245 convictions later overturned by DNA testing nationwide. (The Innocence Project works to find and free innocent people imprisoned in Florida. An actual innocence commission would look at established cases of wrongful conviction to determine what went wrong within the criminal justice system.)
The timing of a commission is important. Florida needs to know why it sends innocent people to prison, whether through individual errors or systemic problems. With DNA testing leading to exonerations of the wrongly convicted with increasing frequency, this is an ideal moment for public acceptance of a commission and its findings.
Once these old cases of injustice proved through DNA testing are exhausted there won't be another opportunity to demonstrate actual innocence with the same level of certainty. But there are still plenty of crimes such as embezzlement, where wrongful convictions occur but DNA is typically not part of the proof. In order to prevent these kinds of injustices, the nuts and bolts of the criminal justice system need reform.
Talbot "Sandy" D'Alemberte, former Florida State University president and a former ABA president, is behind the push for a commission. He points out that the state high court has regularly investigated administration of justice issues. Earlier efforts include commissions looking into racial bias in Florida courts, the impact of cameras in state courts and whether attorneys should be required to report their pro bono hours. An innocence commission falls within the court's scope of duties, and its establishment was one of the lead recommendations of a 2006 report from the ABA Florida Death Penalty Assessment Team. It's time to get started.
When an innocent person goes to prison it is a tragedy for society as well as for the wrongfully convicted and his family. His life is ruined, taxpayers pay for his upkeep and the real criminal is still at large. Florida needs to know how and why these mistakes happen so another innocent person doesn't spend most of his adult life behind bars.
A St. Petersburg Times Editorial Dec 09
Justice for mentally ill must evolve:
It shouldn't require a hero to fix this.
Judge Steven Leifman certainly qualifies for the appellation, leading (or, more accurately, dragging) Miami-Dade away from ineffective, costly, cruel policies that turned the Miami-Dade County jail into the nation's second-largest mental-health ward (after the Los Angeles County Jail) .
Judge Leifman spoke at a symposium Wednesday morning about considerable progress that Miami-Dade has made these past few years, diverting the mentally ill, many of them serial recidivists, out of the criminal justice system.
Miami Police Lt. Jeff Locke talked about the evolution of police policies toward psychotic behavior. Before 1999, police essentially acted as ``goons'' when they dealt with mentally ill transgressors, he said, ready to answer violence with violence. And sometimes deadly force. ``I was one of those cops.''
A BETTER APPROACH
Locke now trains local police officers in crisis intervention. Most police agencies in Miami-Dade County now have trained squads dedicated to defusing these confrontations. Judge Leifman talked about results: Half the subjects of police calls involving psychotic episodes are now diverted into treatment programs.
But it never should have come down to cops and jailers and a heroic judge to fix this medieval system. Leifman and Locke and the criminal justice system have been forced to deal with a massive community failure, 40 years in the making. As Florida closed its mental hospitals, most for good reason, the state failed to provide the outreach to keep the mentally ill treated, sheltered and safe.
We left them to their own devices. Until they became a police problem.
Here's what neglect got us: Some 125,000 of our mentally ill will take up space in Florida's jails and prisons this year, most for minor transgressions. Leifman said that on any given day, Florida houses 17,000 mentally ill prisoners in the state correctional system, another 15,000 in local lock-ups. Yet another 40,000 are on community control, and given the paucity of treatment, twice as likely to flunk probation.
THE FINANCIAL TOLL
Treatment costs behind bars devour budgets. Jails make for massively expensive, utterly ineffective mental hospitals. But for 40 years, Florida has cycled the mentally ill from the streets to jail to the streets to jail. With in-jail treatment mostly consisting of a regime of pills designed to keep them placid, not manage their illness.
Leifman said Wednesday that the fastest growing sub-set of prisoners in the state's corrections system are mentally ill defendants sent to a state institution until they're deemed competent to stand trial. He pointed out that competency training is not about treatment, but only about meeting the legal threshold necessary to try a prisoner. The overwhelming majority (currently occupying about 17,000 beds) finally will be hauled into court, then turned loose, sentenced to time served. And they'll be back.
In the next 10 years, Leifman said, their number will double to 35,000. They'll require 10 new prisons and an annual budget of $3.5 billion in a state that's going broke. ``It's insane,'' the judge said.
Yet a bill to divert these prisoners into community-based managed care, at a fraction of the cost, has languished for two years in the Legislature.
It shouldn't take a hero to fix this.
Posted on Wed, Dec. 09, 2009
By FRED GRIMM
fgrimm@MiamiHerald.com
Judge Steven Leifman certainly qualifies for the appellation, leading (or, more accurately, dragging) Miami-Dade away from ineffective, costly, cruel policies that turned the Miami-Dade County jail into the nation's second-largest mental-health ward (after the Los Angeles County Jail) .
Judge Leifman spoke at a symposium Wednesday morning about considerable progress that Miami-Dade has made these past few years, diverting the mentally ill, many of them serial recidivists, out of the criminal justice system.
Miami Police Lt. Jeff Locke talked about the evolution of police policies toward psychotic behavior. Before 1999, police essentially acted as ``goons'' when they dealt with mentally ill transgressors, he said, ready to answer violence with violence. And sometimes deadly force. ``I was one of those cops.''
A BETTER APPROACH
Locke now trains local police officers in crisis intervention. Most police agencies in Miami-Dade County now have trained squads dedicated to defusing these confrontations. Judge Leifman talked about results: Half the subjects of police calls involving psychotic episodes are now diverted into treatment programs.
But it never should have come down to cops and jailers and a heroic judge to fix this medieval system. Leifman and Locke and the criminal justice system have been forced to deal with a massive community failure, 40 years in the making. As Florida closed its mental hospitals, most for good reason, the state failed to provide the outreach to keep the mentally ill treated, sheltered and safe.
We left them to their own devices. Until they became a police problem.
Here's what neglect got us: Some 125,000 of our mentally ill will take up space in Florida's jails and prisons this year, most for minor transgressions. Leifman said that on any given day, Florida houses 17,000 mentally ill prisoners in the state correctional system, another 15,000 in local lock-ups. Yet another 40,000 are on community control, and given the paucity of treatment, twice as likely to flunk probation.
THE FINANCIAL TOLL
Treatment costs behind bars devour budgets. Jails make for massively expensive, utterly ineffective mental hospitals. But for 40 years, Florida has cycled the mentally ill from the streets to jail to the streets to jail. With in-jail treatment mostly consisting of a regime of pills designed to keep them placid, not manage their illness.
Leifman said Wednesday that the fastest growing sub-set of prisoners in the state's corrections system are mentally ill defendants sent to a state institution until they're deemed competent to stand trial. He pointed out that competency training is not about treatment, but only about meeting the legal threshold necessary to try a prisoner. The overwhelming majority (currently occupying about 17,000 beds) finally will be hauled into court, then turned loose, sentenced to time served. And they'll be back.
In the next 10 years, Leifman said, their number will double to 35,000. They'll require 10 new prisons and an annual budget of $3.5 billion in a state that's going broke. ``It's insane,'' the judge said.
Yet a bill to divert these prisoners into community-based managed care, at a fraction of the cost, has languished for two years in the Legislature.
It shouldn't take a hero to fix this.
Posted on Wed, Dec. 09, 2009
By FRED GRIMM
fgrimm@MiamiHerald.com
Thursday, December 10, 2009
Right and Left Join Forces on Criminal Justice:
In the next several months, the Supreme Court will decide at least a half-dozen cases about the rights of people accused of crimes involving drugs, sex and corruption. Civil liberties groups and associations of defense lawyers have lined up on the side of the accused.
But so have conservative, libertarian and business groups. Their briefs and public statements are signs of an emerging consensus on the right that the criminal justice system is an aspect of big government that must be contained.
The development represents a sharp break with tough-on-crime policies associated with the Republican Party since the Nixon administration.
“It’s a remarkable phenomenon,” said Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers. “The left and the right have bent to the point where they are now in agreement on many issues. In the area of criminal justice, the whole idea of less government, less intrusion, less regulation has taken hold.”
Edwin Meese III, who was known as a fervent supporter of law and order as attorney general in the Reagan administration, now spends much of his time criticizing what he calls the astounding number and vagueness of federal criminal laws.
Mr. Meese once referred to the American Civil Liberties Union as part of the “criminals’ lobby.” These days, he said, “in terms of working with the A.C.L.U., if they want to join us, we’re happy to have them.”
Dick Thornburgh, who succeeded Mr. Meese as attorney general under President Ronald Reagan and stayed on under President George Bush, echoed that sentiment in Congressional testimony in July.
“The problem of overcriminalization is truly one of those issues upon which a wide variety of constituencies can agree,” Mr. Thornburgh said. “Witness the broad and strong support from such varied groups as the Heritage Foundation, the Washington Legal Foundation, the National Association of Criminal Defense Lawyers, the A.B.A., the Cato Institute, the Federalist Society and the A.C.L.U.”
In an interview at the Heritage Foundation, a conservative research group where he is a fellow, Mr. Meese said the “liberal ideas of extending the power of the state” were to blame for an out-of-control criminal justice system. “Our tradition has always been,” he said, “to construe criminal laws narrowly to protect people from the power of the state.”
There are, the foundation says, more than 4,400 criminal offenses in the federal code, many of them lacking a requirement that prosecutors prove traditional kinds of criminal intent.
“It’s a violation of federal law to give a false weather report,” Mr. Meese said. “People get put in jail for importing lobsters.”
Such so-called overcriminalization is at the heart of the conservative critique of crime policy. The U.S. Chamber of Commerce made the point in a recent friend-of-the-court brief about a federal law often used to prosecute corporate executives and politicians. The law, which makes it a crime for officials to defraud their employers of “honest services,” is, the brief said, both “unintelligible” and “used to target a staggeringly broad swath of behavior.”
The Supreme Court will hear three cases concerning the honest-services law this term, indicating an exceptional interest in the topic.
Harvey A. Silverglate, a left-wing civil liberties lawyer in Boston, says he has been surprised and delighted by the reception that his new book, “Three Felonies a Day: How the Feds Target the Innocent,” has gotten in conservative circles. (A Heritage Foundation official offered this reporter a copy.)
The book argues that federal criminal law is so comprehensive and vague that all Americans violate it every day, meaning prosecutors can indict anyone at all.
“Libertarians and the civil liberties left have always had some common ground on these issues,” said Radley Balko, a senior editor at Reason, a libertarian magazine. “The more vocal presence of conservatives on overcriminalization issues is really what’s new.”
Several strands of conservatism have merged in objecting to aspects of the criminal justice system. Some conservatives are suspicious of all government power, while others insist that the federal government has been intruding into matters the Constitution reserves to the states.
In January, for instance, the Supreme Court will hear arguments in United States v. Comstock, about whether Congress has the constitutional power to authorize the continued confinement of people convicted of sex crimes after they have completed their criminal sentences.
Then there are conservatives who worry about government seizure of private property said to have been used to facilitate crimes, an issue raised in Alvarez v. Smith, which was argued in October.
“A joint on a yacht, and the whole thing is forfeited,” said Paul Cassell, a law professor at the University of Utah and a former federal judge appointed by President George W. Bush.
Some religious groups object to prison policies that appear to ignore the possibility of rehabilitation and redemption, and fiscal conservatives are concerned about the cost of maintaining the world’s largest prison population.
“Conservatives now recognize the economic consequences of a criminal justice leviathan,” said Erik Luna, a law professor at Washington and Lee University.
The roots of the conservative re-examination of crime policy might also be found in the jurisprudence of Justices Antonin Scalia and Clarence Thomas. The two justices, joined by liberal colleagues, have said the original meaning of the Constitution required them to rule against the government in, among other areas, the rights of criminal defendants to confront witnesses.
“Scalia and Thomas are vanguards of an understanding by the modern right that its distrust of government extends all the way to the criminal justice system,” said Douglas A. Berman, a law professor at Ohio State University.
The court will hear another confrontation clause case, Briscoe v. Virginia, in January. It is a sequel to a decision in June that prosecutors may not use crime lab reports without live testimony from the analysts who prepared them.
The conservative re-evaluation of crime policy is not universal, of course. Two notable exceptions to the trend, said Timothy Lynch, director of the Cato Institute’s criminal justice project, are Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr.
“Roberts and Alito are coming down consistently on the side of the government in these criminal justice cases,” Mr. Lynch said.
Some scholars are skeptical about conservatives’ timing and motives, noting that their voices are rising during a Democratic administration and amid demands for accountability for the economic crisis.
“The Justice Department now acts as a kind of counterweight to corporate power,” said Frank O. Bowman, a law professor at the University of Missouri. “On the other side is an alliance between two strands of conservative thinking, the libertarian point of view and the corporate wing of the Republican Party.”
Mr. Meese acknowledged that the current climate was not the ideal one for his point of view. “We picked by accident a time,” he said, “when it was not a very popular topic in light of corporate frauds.”
By ADAM LIPTAK New York Times
But so have conservative, libertarian and business groups. Their briefs and public statements are signs of an emerging consensus on the right that the criminal justice system is an aspect of big government that must be contained.
The development represents a sharp break with tough-on-crime policies associated with the Republican Party since the Nixon administration.
“It’s a remarkable phenomenon,” said Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers. “The left and the right have bent to the point where they are now in agreement on many issues. In the area of criminal justice, the whole idea of less government, less intrusion, less regulation has taken hold.”
Edwin Meese III, who was known as a fervent supporter of law and order as attorney general in the Reagan administration, now spends much of his time criticizing what he calls the astounding number and vagueness of federal criminal laws.
Mr. Meese once referred to the American Civil Liberties Union as part of the “criminals’ lobby.” These days, he said, “in terms of working with the A.C.L.U., if they want to join us, we’re happy to have them.”
Dick Thornburgh, who succeeded Mr. Meese as attorney general under President Ronald Reagan and stayed on under President George Bush, echoed that sentiment in Congressional testimony in July.
“The problem of overcriminalization is truly one of those issues upon which a wide variety of constituencies can agree,” Mr. Thornburgh said. “Witness the broad and strong support from such varied groups as the Heritage Foundation, the Washington Legal Foundation, the National Association of Criminal Defense Lawyers, the A.B.A., the Cato Institute, the Federalist Society and the A.C.L.U.”
In an interview at the Heritage Foundation, a conservative research group where he is a fellow, Mr. Meese said the “liberal ideas of extending the power of the state” were to blame for an out-of-control criminal justice system. “Our tradition has always been,” he said, “to construe criminal laws narrowly to protect people from the power of the state.”
There are, the foundation says, more than 4,400 criminal offenses in the federal code, many of them lacking a requirement that prosecutors prove traditional kinds of criminal intent.
“It’s a violation of federal law to give a false weather report,” Mr. Meese said. “People get put in jail for importing lobsters.”
Such so-called overcriminalization is at the heart of the conservative critique of crime policy. The U.S. Chamber of Commerce made the point in a recent friend-of-the-court brief about a federal law often used to prosecute corporate executives and politicians. The law, which makes it a crime for officials to defraud their employers of “honest services,” is, the brief said, both “unintelligible” and “used to target a staggeringly broad swath of behavior.”
The Supreme Court will hear three cases concerning the honest-services law this term, indicating an exceptional interest in the topic.
Harvey A. Silverglate, a left-wing civil liberties lawyer in Boston, says he has been surprised and delighted by the reception that his new book, “Three Felonies a Day: How the Feds Target the Innocent,” has gotten in conservative circles. (A Heritage Foundation official offered this reporter a copy.)
The book argues that federal criminal law is so comprehensive and vague that all Americans violate it every day, meaning prosecutors can indict anyone at all.
“Libertarians and the civil liberties left have always had some common ground on these issues,” said Radley Balko, a senior editor at Reason, a libertarian magazine. “The more vocal presence of conservatives on overcriminalization issues is really what’s new.”
Several strands of conservatism have merged in objecting to aspects of the criminal justice system. Some conservatives are suspicious of all government power, while others insist that the federal government has been intruding into matters the Constitution reserves to the states.
In January, for instance, the Supreme Court will hear arguments in United States v. Comstock, about whether Congress has the constitutional power to authorize the continued confinement of people convicted of sex crimes after they have completed their criminal sentences.
Then there are conservatives who worry about government seizure of private property said to have been used to facilitate crimes, an issue raised in Alvarez v. Smith, which was argued in October.
“A joint on a yacht, and the whole thing is forfeited,” said Paul Cassell, a law professor at the University of Utah and a former federal judge appointed by President George W. Bush.
Some religious groups object to prison policies that appear to ignore the possibility of rehabilitation and redemption, and fiscal conservatives are concerned about the cost of maintaining the world’s largest prison population.
“Conservatives now recognize the economic consequences of a criminal justice leviathan,” said Erik Luna, a law professor at Washington and Lee University.
The roots of the conservative re-examination of crime policy might also be found in the jurisprudence of Justices Antonin Scalia and Clarence Thomas. The two justices, joined by liberal colleagues, have said the original meaning of the Constitution required them to rule against the government in, among other areas, the rights of criminal defendants to confront witnesses.
“Scalia and Thomas are vanguards of an understanding by the modern right that its distrust of government extends all the way to the criminal justice system,” said Douglas A. Berman, a law professor at Ohio State University.
The court will hear another confrontation clause case, Briscoe v. Virginia, in January. It is a sequel to a decision in June that prosecutors may not use crime lab reports without live testimony from the analysts who prepared them.
The conservative re-evaluation of crime policy is not universal, of course. Two notable exceptions to the trend, said Timothy Lynch, director of the Cato Institute’s criminal justice project, are Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr.
“Roberts and Alito are coming down consistently on the side of the government in these criminal justice cases,” Mr. Lynch said.
Some scholars are skeptical about conservatives’ timing and motives, noting that their voices are rising during a Democratic administration and amid demands for accountability for the economic crisis.
“The Justice Department now acts as a kind of counterweight to corporate power,” said Frank O. Bowman, a law professor at the University of Missouri. “On the other side is an alliance between two strands of conservative thinking, the libertarian point of view and the corporate wing of the Republican Party.”
Mr. Meese acknowledged that the current climate was not the ideal one for his point of view. “We picked by accident a time,” he said, “when it was not a very popular topic in light of corporate frauds.”
By ADAM LIPTAK New York Times
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