Democrats’ new dilemma – they were too tough on crime.

Bill and Hillary Clinton at the signing of the 1994 Crime Bill.

Bill and Hillary Clinton at the signing of the 1994 Crime Bill.

Good morning Austin:

For much of my lifetime, crime was an issue that Republicans used to great effect against Democrats, leading Democrats to sometimes go to extraordinary lengths to establish their bona fides for being tough on crime.

One result – President Bill Clinton and Gov. Ann Richards presided over unprecedented growth of the prison populations in the United States and Texas respectively during their tenures.

From Michelle Alexander’s book, The New Jim Crow:

Far from resisting the emergence of the new caste system, Clinton escalated the drug war beyond what conservatives had imagined possible a decade earlier. As the Justice Policy Institute has observed, “The Clinton Administration’s `tough on crime’ policies resulted in the largest increases in federal and state prison inmates of any president in American history.”

And from Robert Perkinson’s book, Texas Tough:

All told, the size of Texas’s already hulking prison system more than doubled under Richard’s watch, a notable accomplishment for a liberal governor. In this way, Richards’s program offered a punitive twist on the New Deal politics of her youth. By the end of her term, she was managing one of the biggest public works projects in Texas history, what the Criminal Justice Policy Council called “the largest correctional construction project in the world.”

It now appears that legacy will become an issue in the 2016 presidential campaign, only this time, the Democrats – most especially Hillary Clinton – will stand accused of having been too tough on crime.

From Rand Paul’s campaign yesterday:

WASHINGTON, D.C.- Earlier today, Hillary Clinton proposed various criminal justice reform ideas in an attempt to undo some of Bill Clinton’s work– the same work she cheerfully supported as First Lady.

According to Salon, the Clinton administration’s focus on the “War on Drugs” is responsible for increasing incarceration by 673,000 new inmates:

“The explosion of the prison system under Bill Clinton’s version of the “War on Drugs” is impossible to dispute. The total prison population rose by 673,000 people under Clinton’s tenure – or by 235,000 more than it did under President Ronald Reagan, according to a study by the Justice Policy Institute. “Under President Bill Clinton, the number of prisoners under federal jurisdiction doubled, and grew more than it did under the previous 12-years of Republican rule,combined,” states the JPI report. The federal incarceration rate in 1999, the last year of the Democrat’s term, was 42 per 100,000 – more than double the federal incarceration rate at the end of President Reagan’s term (17 per 100,000), and 61 percent higher than at the end of President George Bush’s term (25 per 100,000), according to JPI.”

Bill and Hillary Clinton at the signing of the 1994 Crime Bill.

Bill and Hillary Clinton at the signing of the 1994 Crime Bill.

This will be a problem for Clinton as she attempts to stake a claim to the issue.

Here is the headline from the Politico story yesterday by Ben Schreckinger and Annie Karn: Hillary Clinton’s criminal justice plan: Reverse Bill’s policies:

Hillary Clinton declared Wednesday in New York that there’s “something wrong” with criminal justice in America.

But a lot of what Clinton finds wrong can be traced to her husband’s presidency.

Bill Clinton imposed harsher sentencing guidelines, cut education funding for prisoners, and expanded the flow of military equipment to local police in the 1990s, when violent crime was surging and tough policies played well in the political center. With Baltimore in flames and bipartisan concern about mass incarceration rising, both Clintons are now calling for reform.

“It’s time to end the era of mass incarceration,” said the former secretary of state in Wednesday’s speech at Columbia University. What she didn’t say: She lobbied liberal lawmakers to support her husband’s 1994 crime bill, which included $9.7 billion in prison funding and tougher sentencing provisions.

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Clinton decried the decades-long growth of American prison populations, though it continued unabated during her husband’s administration and beyond. The number of prisoners grew nearly 60 percent between the end of 1992 and the end of 2000, the duration of Bill Clinton’s presidency, according to figures from the Bureau of Justice Statistics.

Clinton also took aim at the militarization of police forces. “We can start by making sure that federal funds for state and local law enforcement are used to bolster best practices, rather than to buy weapons of war that have no place on our streets,” she said Wednesday.

Left unsaid: A program signed into law by her husband increased the flow of those weapons from the Pentagon to local police departments. The 1997 National Defense Authorization Act allowed the Department of Defense to donate excess supplies to local law enforcement agencies for any purpose, expanding an older program that was limited to aiding anti-narcotics operations. Under the program inaugurated by the Clinton administration, the Pentagon has transferred more than $5.4 billion worth of supplies, including weapons and vehicles, to local police, according to the Defense Logistics Agency.

These tough-on-crime policies, say advocates of reform, have set the stage for the unrest enveloping Baltimore and other American cities in response to police violence against black men.

“I think where we are today partly can be attributed to what went on in the ‘90s,” said Marc Schindler, executive director of the Justice Policy Institute. “That includes who was in the White House, who was in Congress, who was in state houses across the country.”

And who was in City Hall.

If the sharp political turn on criminal justice policies may place Hillary Clinton on the defensive in her efforts to present herself as a credible leader for reform, it would seem to deal a crippling blow to the long-shot prospects of likely rival Martin O’Malley, former mayor of Baltimore and governor of Maryland, in the aftermath of recent events in Charm City.

From today’s New York Times:

When riots exploded over the death of Freddie Gray, a young black man who was critically injured in police custody, Mr. O’Malley rushed back to the city from London to visit the scene of the protests, meet with local leaders and deliver food at churches. But on those familiar streets, critics old and new questioned his record as mayor, the “zero tolerance” brand of policing he introduced and the lingering effects it had on the relationship between law enforcement and Baltimore’s poor communities.

For a politician whose potential candidacy has received little attention, it was hardly the spotlight he had hoped for. But Mr. O’Malley has nevertheless embraced the moment, arguing that his in-the-trenches familiarity with the urban issues exposed by the riots gives him a unique voice in the coming presidential election.

“There is nobody else among those who might run that has had the experience I have had of living this and working this every day for the last 15 years,” Mr. O’Malley said in an extended phone interview on Wednesday.

“I haven’t traveled the world as widely as some others,” he said, in an obvious reference to Mrs. Clinton, the former secretary of state, “but I certainly have traveled the length and breadth of this gap between the ideal of who we are as a people and the places where we are falling far short.”

Mr. O’Malley declined to discuss Mrs. Clinton (“no, no, no,” he said, “I’m not doing Hillary today”), who at Columbia University on Wednesday called for the end of “the era of mass incarceration.”

Some of Mr. O’Malley’s supporters pointed out that Mrs. Clinton supported the strict prison laws that expanded those very prison populations, and noted her absence in Baltimore. But Mr. O’Malley said that he would speak to only “the substance” of her speech, and that he had “achieved the trifecta” of lowering crime, incarceration and recidivism as mayor of Baltimore and governor of Maryland.

But, according to David Simon, the one-time police reporter for The Baltimore Sun, who went on to create Homicide: A Year on the Killing Streets, and the HBO television series The Wire, that trifecta was built on lies.

As Molly Ball wrote in a profile of O’Malley in the Atlantic last year:

The character of Tommy Carcetti—the ambitious white-ethnic councilman who rises to the mayoralty, and then the governorship, based on manipulated crime-reduction statistics—is a composite inspired partly by O’Malley. (Although O’Malley was similarly accused of fudging crime stats, he denies it, and the allegation has never been proved.)

Perhaps, but in an extraordinary interview this week with Bill Keller at the Marshall Project, Simon offered a withering assessment of O’Malley’s tenure and legacy, culminating in riots and the first Major League Baseball game ever to be played in an empty stadium, eerie and evocative images that I don’t see how O’Malley’s incipient candidacy can ever get past.

Simon: The drug war began it, certainly, but the stake through the heart of police procedure in Baltimore was Martin O’Malley. He destroyed police work in some real respects. Whatever was left of it when he took over the police department, if there were two bricks together that were the suggestion of an edifice that you could have called meaningful police work, he found a way to pull them apart. Everyone thinks I’ve got a hard-on for Marty because we battled over “The Wire,” whether it was bad for the city, whether we’d be filming it in Baltimore. But it’s been years, and I mean, that’s over. I shook hands with him on the train last year and we buried it. And, hey, if he’s the Democratic nominee, I’m going to end up voting for him. It’s not personal and I admire some of his other stances on the death penalty and gay rights. But to be honest, what happened under his watch as Baltimore’s mayor was that he wanted to be governor. And at a certain point, with the crime rate high and with his promises of a reduced crime rate on the line, he put no faith in real policing.

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The city eventually got sued by the ACLU and had to settle, but O’Malley defends the wholesale denigration of black civil rights to this day. Never mind what it did to your jury pool: now every single person of color in Baltimore knows the police will lie — and that’s your jury pool for when you really need them for when you have, say, a felony murder case. But what it taught the police department was that they could go a step beyond the manufactured probable cause, and the drug-free zones and the humbles – the targeting of suspects through less-than-constitutional procedure. Now, the mass arrests made clear, we can lock up anybody, we don’t have to figure out who’s committing crimes, we don’t have to investigate anything, we just gather all the bodies — everybody goes to jail. And yet people were scared enough of crime in those years that O’Malley had his supporters for this policy, council members and community leaders who thought, They’re all just thugs.

But they weren’t. They were anybody who was slow to clear the sidewalk or who stayed seated on their front stoop for too long when an officer tried to roust them. Schoolteachers, Johns Hopkins employees, film crew people, kids, retirees, everybody went to the city jail. If you think I’m exaggerating look it up. It was an amazing performance by the city’s mayor and his administration.

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I’ve just described for you the culture of the Baltimore police department amid the deluge of the drug war, where actual investigation goes unrewarded and where rounding up bodies for street dealing, drug possession, loitering such – the easiest and most self-evident arrests a cop can make – is nonetheless the path to enlightenment and promotion and some additional pay. That’s what the drug war built, and that’s what Martin O’Malley affirmed when he sent so much of inner city Baltimore into the police wagons on a regular basis.

The second thing Marty did, in order to be governor, involves the stats themselves. In the beginning, under Norris, he did get a better brand of police work and we can credit a legitimate 12 to 15 percent decline in homicides. Again, that was a restoration of an investigative deterrent in the early years of that administration. But it wasn’t enough to declare a Baltimore Miracle, by any means.

What can you do? You can’t artificially lower the murder rate – how do you hide the bodies when it’s the state health department that controls the medical examiner’s office? But the other felony categories? Robbery, aggravated assault, rape? Christ, what they did with that stuff was jaw-dropping.

Keller: So they cooked the books.

Simon: Oh yeah. If you hit somebody with a bullet, that had to count. If they went to the hospital with a bullet in them, it probably had to count as an aggravated assault. But if someone just took a gun out and emptied the clip and didn’t hit anything or they didn’t know if you hit anything, suddenly that was a common assault or even an unfounded report. Armed robberies became larcenies if you only had a victim’s description of a gun, but not a recovered weapon. And it only gets worse as some district commanders began to curry favor with the mayoral aides who were sitting on the Comstat data. In the Southwest District, a victim would try to make an armed robbery complaint, saying , ‘I just got robbed, somebody pointed a gun at me,’ and what they would do is tell him, well, okay, we can take the report but the first thing we have to do is run you through the computer to see if there’s any paper on you. Wait, you’re doing a warrant check on me before I can report a robbery? Oh yeah, we gotta know who you are before we take a complaint. You and everyone you’re living with? What’s your address again? You still want to report that robbery?

They cooked their own books in remarkable ways. Guns disappeared from reports and armed robberies became larcenies. Deadly weapons were omitted from reports and aggravated assaults became common assaults. The Baltimore Sun did a fine job looking into the dramatic drop in rapes in the city. Turned out that regardless of how insistent the victims were that they had been raped, the incidents were being quietly unfounded. That tip of the iceberg was reported, but the rest of it, no. And yet there were many veteran commanders and supervisors who were disgusted, who would privately complain about what was happening. If you weren’t a journalist obliged to quote sources and instead, say, someone writing a fictional television drama, they’d share a beer and let you fill cocktail napkins with all the ways in which felonies disappeared in those years.

I mean, think about it. How does the homicide rate decline by 15 percent, while the agg assault rate falls by more than double that rate. Are all of Baltimore’s felons going to gun ranges in the county? Are they becoming better shots? Have the mortality rates for serious assault victims in Baltimore, Maryland suddenly doubled? Did they suddenly close the Hopkins and University emergency rooms and return trauma care to the dark ages? It makes no sense statistically until you realize that you can’t hide a murder, but you can make an attempted murder disappear in a heartbeat, no problem.

But these guys weren’t satisfied with just juking their own stats. No, the O’Malley administration also went back to the last year of the previous mayoralty and performed its own retroactive assessment of those felony totals, and guess what? It was determined from this special review that the preceding administration had underreported its own crime rate, which O’Malley rectified by upgrading a good chunk of misdemeanors into felonies to fatten up the Baltimore crime rate that he was inheriting. Get it? How better than to later claim a 30 or 40 percent reduction in crime than by first juking up your inherited rate as high as she’ll go. It really was that cynical an exercise.

So Martin O’Malley proclaims a Baltimore Miracle and moves to Annapolis. And tellingly, when his successor as mayor allows a new police commissioner to finally de-emphasize street sweeps and mass arrests and instead focus on gun crime, that’s when the murder rate really dives. That’s when violence really goes down. When a drug arrest or a street sweep is suddenly not the standard for police work, when violence itself is directly addressed, that’s when Baltimore makes some progress.

Meanwhile, former President Clinton offers a mea culpa of sorts for his role in expanding incarceration in America in the foreword to a new essay collection,  Solutions: American Leaders Speak Out on Criminal Justice, released this week by the Brennan Center for Justice at NYU School of Law and described here:

With a new essay collection from a bipartisan group of prominent public figures, criminal justice reform has entered the center of American political discourse ahead of the 2016 election.

Released today by the Brennan Center for Justice at NYU School of Law, the book offers a first-of-its-kind preview of the range of policy reforms that may be debated throughout the campaign season, with striking consensus around one idea: the need to reduce the American prison population.

Solutions: American Leaders Speak Out on Criminal Justice, edited by Brennan Center president Michael Waldman and Justice Program director Inimai Chettiar, includes essays by Joseph R. Biden, Cory Booker, Cornell Brooks, Chris Christie, Hillary Rodham Clinton, Ted Cruz, Mike Huckabee, Cathy L. Lanier, Martin O’Malley Janet Napolitano, Rand Paul, Rick Perry, Marco Rubio, Bryan Stevenson, Scott Walker, James Webb, and more.

Among the highlights:

This collection marks the first time many of these leaders have put pen to paper on the issue of criminal justice policy.
 
Nearly every contributor identifies the problem as mass incarceration, meaning the sheer volume of people incarcerated, and propose public policy solutions to reduce it.
 
Their policy solutions range from releasing low-level offenders waiting for trial to using federal grants to change police practices, from eliminating prison for low-level drug crimes to increasing mental health treatment.

Here is Bill Clinton’s foreword:

In this time of increased political polarization, there is one area where we have a genuine chance at bipartisan cooperation: the over-imprisonment of people who did not commit serious crimes.

The drop in violence and crime in America has been an extraordinary national achievement. But plainly, our nation has too many people in prison and for too long — we have overshot the mark. With just 5 percent of the world’s population, we now have 25 percent of its prison population, and an emerging bipartisan consensus now understands the need to do better.

It has been two decades since there was sustained national attention to criminal justice. By 1994, violent crime had tripled in 30 years. Our communities were under assault. We acted to address a genuine national crisis. But much has changed since then. It’s time to take a clear-eyed look at what worked, what didn’t, and what produced unintended, long-lasting consequences.

So many of these laws worked well, especially those that put more police on the streets. But too many laws were overly broad instead of appropriately tailored. A very small number of people commit a large percentage of serious crimes — and society gains when that relatively small group is behind bars. But some are in prison who shouldn’t be, others are in for too long, and without a plan to educate, train, and reintegrate them into our communities, we all suffer.

The new approach has many roots and just as many advantages: a desire to save taxpayers money; the resolve to promote rehabilitation not recidivism; an obligation to honor religious values; the necessity to alleviate crushing racial imbalances. All of them strengthen this powerful new movement.

Now it’s time to focus on solutions and ask the right questions. Can we do a better job identifying the people who present a serious threat to society? If we shorten prison terms, could we take those savings and, for example, restore the prison education programs that practically eliminate recidivism? How can we reduce the number of prisoners while still keeping down crime?

As the presidential election approaches, national leaders across the political spectrum should weigh in on this challenge — and in this exciting book of essays from the Brennan Center, many of our nation’s political leaders step up and offer answers. This, in itself, is deeply encouraging. After decades in which fear of crime was wielded as a political weapon, so many now understand the need to think hard and offer real reforms, which, if implemented, can bring about this change in the right way. To address our prison problem, we need real answers, a real strategy, real leadership — and real action. We can show how change can happen when we work together across partisan and political divides. That is the great promise of America. 

From a Peter Baker story in the New York Times earlier this week on the release of the book of essays:

This really does reflect a huge change in the political momentum from decades when parties and candidates competed to see who could be the most flamboyantly punitive,” said Michael Waldman, the president of the Brennan Center for Justice at New York University’s School of Law and a former aide to Mr. Clinton. Now, Mr. Waldman said, “there’s a competition for reform and to take on the issue of mass incarceration. It’s really unheard-of in recent decades.”

“This used to be a wedge issue, not it’s a consensus issue,” Waldman said on Morning Joe this morning.

Maybe, but I can see a Rand Paul anti-Hillary ad in which statistics on incarceration roll across images of black men in prison, with a wan, explanatory tag line from Bill Clinton: “We have overshot the mark.”

Here are the essays that Sen. Ted Cruz and former Gov. Rick Perry contributed to the collection.

From Rick Perry – Follow the Texas Model.

For too long,  fear has dictated America’s criminal justice policy. Citizens, afraid of the growing violence brought on by the drug wars of the 1980s, demanded harsher penalties and longer sentences. Politicians, afraid of looking soft on the issue, eagerly obliged.

But policy driven solely by fear — absent the equally powerful motivation of human redemption — has failed us. States across the country spent billions locking up kids for the most minor of offenses. In jail, these kids learned how to become hardened criminals. Out of jail, they often repeated their crimes. The result was a significant fiscal burden for taxpayers, a less safe community, and a segment of society shut out from hope and opportunity.

I saw this firsthand in Texas. While arrests for violent and property offenses remained fairly steady throughout the 1990s, drug-related arrests had increased by one-third. The amount Texas spent on prisons and parole had ballooned to nearly $3 billion a year in 2007 — and it was nowhere near enough. Projections called for an additional 17,000 prison beds, at an additional $2 billion, just to sustain the system for another five years.

Something needed to change. No political party has a monopoly on good ideas, including my own. Over the course of my career in public service, I have never been afraid to borrow good ideas, regardless of where they come from.

That’s why, when Judge John Creuzot, a Democrat from Dallas, shared an idea that would change the way Texas handled first-time, nonviolent drug offender, I listened. As the founder of one of the first drug courts in Texas, Judge Creuzot argued that incarceration was not the best solution for many low-risk, nonviolent offenders. It benefits neither the individual nor society at large, and can even increase the odds that offenders will commit more crimes upon release. And, just as importantly, by treating addiction as a disease — and not merely punishing the criminal behavior it compels — Texas could give new hope to people trying to get their lives back. The evidence he presented was compelling. Recidivism in his program was 57 percent lower than traditional state courts, and every dollar he spent saved $9 in future costs.

So in 2007, with broad support from Republicans and Democrats alike, Texas fundamentally changed its course on criminal justice. We focused on diverting people with drug addiction issues from entering prison in the first place, and programs to keep them from returning.

First, we expanded our commitment to drug courts that allow certain low-level offenders to stay out of prison, if they agreed to comprehensive supervision, drug testing, and treatment. We added drug courts to more counties, increased funding, and expanded the types of crimes that allow a defendant to enter drug courts. Rather than languishing somewhere in a cell, first-time, nonviolent offenders willing to confront their drug addiction are connected with counseling and undergo intense supervision, including weekly random drug tests and meeting with a probation officer. These programs work. The National Association of Drug Court Professionals found that about 75 percent of people who complete drug court programs do not recidivate.

Second, we reformed our approach to parole and probation. We focused financial resources on rehabilitation so we could ultimately spend less money locking prisoners up again. We invested $241 million to create treatment and rehabilitation programs to address drug addiction and mental illness for people on parole and probation. Rather than immediate re-incarceration for minor violations of parole or probation conditions, we introduced a system of progressively increasing punishments, or “graduated sanctions.” If people committed violations because of drug or mental health issues, we addressed those issues instead of simply locking them up again. We added more residential and outpatient beds for substance abuse treatment. We added more beds in halfway houses providing reentry services. And we provided more substance abuse programs in prisons and jails.

A key shift was a focus on outcomes rather than volume. We offered financial incentives to local probation departments: they could win additional state funds if they reduced the number of probationers returning to prison by 10 percent by adopting the graduated sanctions approach. Most departments accepted this challenge, and the number of new crimes committed by probationers substantially decreased across the state. These types of financial incentives are proven to work. Government should be funding what works — not blindly funneling money into broken prisons.

The results have been remarkable. Texas implemented these reforms in 2007. By the time I left office in 2015, Texas had expanded the number of specialty courts in the state from nine to more than 160. We reduced the number of parole revocations to prison by 39 percent. We saved $2 billion from our budget, not to mention the countless lives saved. We did all this while our crime rate dropped to its lowest point since 1968. And for the first time in modern Texas history, instead of building new prisons, we shut down three and closed six juvenile lock-ups.

Taxpayers have saved billions because of our new approach to criminal justice, and they’re safer in their homes and on the streets. Fewer lives have been destroyed by drug abuse, and more people are working and taking care of their families instead of languishing behind bars. That may be the most significant achievement of all: By keeping more families together we are breaking the cycle of incarceration that condemns each subsequent generation to a life of lesser dreams.

Our new approach to criminal justice policy is all about results. This change did not make Texas soft on crime. It made us smart on crime. There is nothing easy about our diversion programs. Our drug courts provide an opportunity to those willing to work hard to regain control of their lives. They are often much tougher than traditional programs. What they get in return is a chance to minimize the damage they have done to their lives. And for some people, a chance is all they really need.

I am proud that in Texas, criminal justice policy is no longer driven solely by fear, but by a commitment to true justice, and compassion for those shackled by the chains of addiction. My hope is that all states will do likewise. States across the country can follow the successful example of Texas. By off treatment instead of prison for those with drug and mental health problems — upon entrance and exit from prison — the United States can eliminate our incarceration epidemic.

A big, expensive prison system — one that off no hope for second chances and redemption — is not conservative policy. Conservative policy is smart on crime.

I am reminded of the words of the 20th century social activist who co-founded Volunteers for America, Maud Ballington Booth: “There is a sunshine that can force its way through prison bars and work wondrous and unexpected miracles . . . and a genuine change of heart where such results seemed the most utterly unlikely and impossible.”

We must remember that when it comes to the disease of addiction, the issue is not helping bad people become good, but rather helping sick people become well.

And here is Cruz’s essay, Reduce Federal Crimes and Give Judges Flexibility:

The criminal law is the most potent “lever through which government brings power to bear on the individual citizen.” Not  only can a criminal conviction lead to imprisonment and the loss of other rights, including the right to vote, it forever brands those who are convicted as criminals — a stigma that can be difficult, if not impossible, to overcome. Because of these serious consequences, the power to define crimes and to prosecute and jail people for committing them must be exercised with utmost care. Unfortunately, for all its virtues, the criminal justice system does not always exercise the care that it should.

This essay focuses on three vital areas of concern: overcriminalization, harsh mandatory minimum sentences, and the demise of jury trials. These problems pervade our criminal justice system at large, but there are practical ways to address them at the federal level. Congress should pass laws that would eliminate redundant crimes and convert regulatory crimes into civil offenses, take steps to give judges more sentencing flexibility, and require prosecutors to disclose material exculpatory evidence during plea negotiations.

The first problem is the proliferation of federal crimes, what is often termed overcriminalization. Since the late 19th century, the number of federal offenses has risen steadily, accelerating during the New Deal and virtually exploding since the 1970s. The last time a rigorous effort was undertaken to tally the number was over 30 years ago in 1982. The task took two years and produced, at best, an educated estimate of approximately 3,000 federal criminal offenses. No one really knows what the real number is today. We do know, however, that Congress created more than 450 new crimes from 2000 to 2007, a rate of more than one a week. Assuming a one-a-week rate over the last 32 years, the number of federal criminal offenses would now exceed 4,600. But even that does not capture the full scope of our overcriminalization epidemic because many federal regulations carry criminal penalties. If those regulations are included in the tally, then the total number of federal offenses could reach a staggering 300,000.

Congress and the president should work together — perhaps through a commission — to scrub the entire United States Code, eliminating crimes that are redundant and converting regulatory crimes into civil offenses. But the political incentives to criminalize disfavored conduct — whether it is inherently evil or not — could prove too great to generate the support needed to undertake this Herculean task.

The place to start is with incremental reforms aimed at mitigating the harmful effects of overcriminalization. Congress should begin by requiring that all criminal offenses are put into one title of the Code, Title 18, or if that proves too difficult, Congress can enact a law that prohibits criminal liability on the basis of any statute that is not codified or otherwise cross-referenced in Title 18. Having thousands of criminal laws scattered throughout the entire Code works an intolerable hardship on the public akin to Caligula posting his laws high up to make them difficult for the public to see.

To ameliorate the effect of redundant or overlapping criminal laws, Congress should also pass legislation requiring courts to presume that a single criminal act or transaction should be treated as one crime subject to one punishment, even if the act or transaction is punishable under multiple statutes. And to mitigate the consequences of criminalizing regulatory offenses, Congress should repeal criminal penalties for violations of agency regulations. At the very least, it should require that any new regulations carrying criminal penalties be approved by Congress and the president. Perhaps most importantly, Congress should enact legislation that requires the government to prove the defendant knowingly violated the law — or that, at least, allows a mistake of law defense — for certain classes of crimes that have no analog in the common law or that no reasonable person would understand to be inherently wrong. Where the government has criminalized non-blameworthy conduct for regulatory purposes, ignorance of the law should be a valid defense to criminal liability.

The second problem is the ratcheting up of mandatory minimum sentences over the last several decades. Although there is nothing wrong in principle with mandatory minimums, they must be carefully calibrated to ensure that no circumstances could justify a lesser sentence for the crime charged. The current draconian mandatory minimum sentences sometimes result in sentencing outcomes that neither fit the crime nor the perpetrator’s unique circumstances. This is especially true for nonviolent drug offenders.

Harsh mandatory minimum sentences for nonviolent drug crimes have contributed to prison overpopulation and are both unfair and ineffective relative to the public expense and human costs of years-long incarceration. According to a 2012 Government Accountability Office report, the inmate population in the federal Bureau of Prisons (BOP) increased by more than 400 percent since the late 1980s because of lengthening sentences. The number of drug offenders in federal and state prisons increased 13-fold during that time period. As of February 2015, nearly half — 49 percent — of BOP inmates were sentenced for drug crimes. This has contributed to overcrowding. BOP prisons now house 39 percent more inmates than their capacity. It is far from clear whether this dramatic increase in incarceration for drug crimes has had enough of an effect on property and violent crime rates to justify the human toll of more incarceration.

Given the undeniable costs and dubious benefits of mass, long-term incarceration of nonviolent drug offenders, Congress should take steps to give judges more flexibility in sentencing those offenders. The Smarter Sentencing Act of 2015, which was introduced by Sens. Mike Lee (R-Utah) and Dick Durbin (D-Ill.), and of which I am an original cosponsor, is a significant stride in that direction. Among other things, the bill lowers minimum sentences, cutting them in half, to give judges more flexibility in determining the appropriate sentence based on the unique facts and circumstances of each case.

The third problem, which is exacerbated by the first two, is the demise of jury trials. Plea bargaining has become the norm in our criminal justice system, while the constitutional right to a jury trial — which the Founders understood to be a bulwark against tyranny — is now rarely exercised. Contrary to popular perceptions, we no longer have a system where a jury determines a defendant’s guilt or innocence in a public trial. In 2013, 97 percent of all federal criminal charges that were not dismissed were resolved through plea bargains; less than 3 percent went to trial.

In this plea-bargaining system, prosecutors have extraordinary power, nudging both judges and juries out of the truth-seeking process. The prosecutor is now the proverbial judge, jury, and executioner in the mine-run of cases. Often armed with an extensive menu of crimes, each with their own sentencing ranges, federal prosecutors can wield their discretionary charging power to great effect by threatening the most serious charges that theoretically (if not realistically) can be proved. If the accused succumbs to the threat and pleads guilty, which often happens, the prosecutor agrees to bring lesser or entirely different charges that carry a lower sentencing range.

Given the risks involved in turning down a plea offer, it is not unheard of for people to plead guilty to crimes they never committed. Of the 1,428 legally acknowledged exonerations recorded by the National Registry of Exonerations since 1989, 151 (or roughly 10 percent) involved false guilty pleas. It is estimated that between 2 and 8 percent of convicted felons who have pleaded guilty are actually innocent. In a federal prison population of 218,000 — the number at the end of fiscal year 2011 — where 97 percent pleaded guilty, that means that anywhere from 4,229 to 16,916 people could be imprisoned for crimes they did not commit.

The plea-bargaining system is premised on the assumption that there is relatively equal bargaining power between the accused and the state. Nothing, of course, could be further from the truth. Mitigating the coercive effect of the plea-bargaining process will require empowering the defense. And one way to do that is to reduce the informational asymmetry between prosecutors and defense counsel. Plea offers are often foisted upon the accused before the defense has had enough time to investigate the facts, and the longer the investigation takes, the less generous the plea off may become. Congress should pass legislation that requires the government — whether constitutionally required or not — to disclose material exculpatory evidence before the accused enters into any plea agreement. This reform will reduce the risk of false guilty pleas by helping ensure that the accused is better informed before sealing his or her fate.

Not all criminal justice reforms benefit criminal defendants. I, for instance, strongly supported Sen. Kirsten Gillibrand’s (D-N.Y.) Military Justice Improvement Act, which would have transferred charging authority for many non-military-related crimes, including sexual assault, from unit commanders to independent military prosecutors — a change that may well make it more likely for charges to be brought against defendants. Such a reform will better serve the interests of justice. Likewise, the reforms discussed in this essay would serve the interests of justice by giving much-needed protection to individuals — many of whom are poor or minorities — who find themselves in the crosshairs of federal prosecutors.

Also, you can read the essay, A System that Rewards Results, by Marc Levin, founder and policy director of Right on Crime and director of the Center for Effective Justice at the Texas Public Policy Foundation.

SANDERS JUMPS IN

Sen. Bernie Sanders announced his candidacy for the Democratic nomination for president this morning in an email to supporters:

After a year of travel, discussion and dialogue, I have decided to be a candidate for the Democratic nomination for president. But let’s be clear. This campaign is not about Bernie Sanders. It about a grassroots movement of Americans standing up and saying: “Enough is enough. This country and our government belong to all of us, not just a handful of billionaires.”

 

“I have no idea what he’s thinking” (laughter)

Here is the exchange between Todd Gillman of the Dallas Morning News and White House press secretary Josh Earnest at yesterday’s White House press briefing.

MR. EARNEST: Todd.

Q    Thanks, Josh.  I have a question about — are you familiar with Operation Jade Helm 15?  This is a military exercise in seven western United States.

MR. EARNEST:  Yes, I have read about this.

Q    Okay, so 1,200 special operations forces over eight weeks, some of them traveling kind of incognito in these states. So the governor of Texas has ordered the National Guard to monitor this exercise to make sure that the civil liberties and constitutional rights of Texans are not going to be infringed.  Is this paranoia?  Is this concern justified?  Has it been conveyed to the White House in any way?  Can you explain what the purpose of the exercise is and why people should or shouldn’t be concerned?

MR. EARNEST:  I’ll say a couple things.  My understanding is that the individuals who are participating in the exercise won’t be traveling incognito, that they’ll be wearing armbands.  But what I would do is I would encourage you to check with the Department of Defense that’s conducting the exercise, and they can explain to you what the goal of the exercise is, what sort of — what practices and capabilities will be conducted in the conduct of this particular exercise. 

The thing that I can say without having a lot of detailed knowledge about the particular exercise is that in no way will the constitutional rights or civil liberties of any American citizen be infringed upon while this exercise is being conducted.

Q    What do you think it says that the governor of a state as large as Texas would feel the need to not just order the Texas National Guard, but to announce that he has ordered the Texas National Guard to monitor federal troops to protect his citizens? What does that say about relations and mistrust of this administration?

  MR. EARNEST:  I have no idea what he’s thinking.  (Laughter.)  I might have an idea about what he’s thinking, but I’m not going to — (laughter) — I appreciate the opportunity, though.

Q    Do you think it’s helpful?

MR. EARNEST:  Well, I think it’s — I think what is clear is that I feel confident in expressing to you without having a lot of detailed knowledge of the particular exercise is that the civil liberties and constitutional rights of Americans citizens will be in no way affected by this exercise.

 

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