Capital Defense Weekly

I’m sure I’m not the only crimlaw type wondering what to expect from the next administration following what is expected from the Democratic electoral victory. Speaking strictly for me, and letting others speak to what type of judges President-elect Obama will appoint, here is what I think we’ll see.

A criminal law fact sheet of campaign promises is here.

A quick primer on Obama and the death penalty that appeared some time ago in the Washington Post. “In a nutshell: He’s pro-death penalty but he is also pro-let’s not execute the wrong guy”

Five years later, Obama waded into a complex capital-punishment debate after a number of exonerations persuaded then-Gov. George Ryan (R) to empty death row.

Obama wrote in his recent memoir that he thinks the death penalty “does little to deter crime.” But he supports capital punishment in cases “so heinous, so beyond the pale, that the community is justified in expressing the full measure of its outrage by meting out the ultimate punishment.”

In proposing changes, Obama met repeatedly with officials and advocates on all sides. He nudged and cajoled colleagues fearful of being branded soft on crime, as well as death-penalty opponents worried that any reform would weaken efforts to abolish capital punishment.

Obama’s signature effort was a push for mandatory taping of interrogations and confessions. It was opposed by prosecutors, police organizations and Ryan’s successor, Democrat Rod Blagojevich, who said it would impede investigators.

Working under the belief that no innocent defendant should end up on death row an no guilty one should go free, Obama helped get the bill approved by the Senate on a 58 to 0 vote. When Blagojevich reversed his position and signed it, Illinois became the first state to require taping by statute.

“Obviously, we didn’t agree all the time, but he would always take suggestions when they were logical, and he was willing to listen to our point of view. And he offered his opinions in a lawyerly way,” said Carl Hawkinson, the retired Republican chairman o the Judiciary Committee. “When he spoke on the floor of the Senate, he spoke out of conviction. You knew that, whether you agreed with him or disagreed with him.”

I’m sure I’m not the only crimlaw type wondering what to expect from the next administration following what is expected today’s Democratic electoral victory. Speaking strictly for me, here is what I think we’ll see.

As to the narrow issue of this blog, following the elections the death penalty will likely continue to wither on the vine. Sen. Obama is a death penalty reformer, not an abolitionist. One of the rarely spoken accomplishments of Sen. Obama is his voice in reforming the death penalty and criminal justice system in Illinois. Invariably both would have been reformed without him in some shape and form, however, the scars of the fight to get the broad based reforms that ultimately passed he still bares.

As the campaign noted:

As a member of the Illinois state senate, Barack Obama led efforts to reform a broken death penalty system that sent 13 innocent people to death row because it was filled with error, questionable police tactics, racial bias, and shoddy legal work. Obama drafted and passed a law requiring videotaping of interrogations and confessions in capital cases to ensure that prosecutions are fair. As president, Obama will encourage the states to adopt similar reforms.

For the federal death penalty what is clear is the Bush administration’s capital prosecution practices are coming to an end. The last eight years saw a marked decline in new state death sentences but the federal system saw a huge uptick in federal death sentences. The disparity will likely draw to a rapid close. Although many cases where death is now authorized may continue to go forward new authorizations will likely be fewer and farther between. Where capital prosecutions are sought anticipate the authorization process to be much more rigorous. Similarly, the campaign had stated early on that if elected they would seek to bring many of the Illinois style reforms to the rest of the nation, however what shape those will take remains to be seen.

As to other criminal justice issues, many are noncontroversial, or relatively noncontroversial:

In light of the reality “too many defendants have poor counsel. Barack Obama and Joe Biden will work to improve the quality of our nation’s public defenders by creating loan-forgiveness programs for law students who enter this field.” I am assuming this means funding the John R. Justice Program which passed over the summer and with what appears to be over 60 votes in the Senate for this type of legislation passage appears likely.

The Obama campaign has promised on its website to “strengthen federal hate crimes legislation, expand hate crimes protection by passing the Matthew Shepard Act, and reinvigorate enforcement at the Department of Justice’s Criminal Section.” With what appears to be over 60 votes in the Senate for this type of legislation passage appears likely.

The campaign has likewise promised “job training, substance abuse and mental health counseling to ex-offenders, so that they are successfully re-integrated into society. [The new administration] will also create a prison-to-work incentive program to improve ex-offender employment and job retention rates.” Prisoner reentry is likely to receive more than 60 votes in the Senate which is why I’m considering it noncontroversial and likely to pass.

Similarly, “give first-time, non-violent offenders a chance to serve their sentence, where appropriate, in the type of drug rehabilitation programs that have proven to work better than a prison term in changing bad behavior.” Drug courts work. It costs less than imprisonment, reduces recidivism, and most importantly, it quickly rehabilitates many offenders before they become hard core thugs. Like the other two promises above, this should pass with 60 or more senators.

Two other promises, banning profiling & sentencing reform, appear to require a little more political capital.

The Obama campaign promised a ban on racial “profiling by federal law enforcement agencies and provide federal incentives to state and local police departments to prohibit the practice.” The first half of the campaign pledge can be done relatively easily. The second half of the promise is likely to take a carrot and stick funding approach. As someone has practiced in states that fall on both sides of the racial profiling issue, there doesn’t really seem to be that much a difference, save for the stigmatization suffered by people who were targeted for “driving while . . . .” Opposition to this issue has been a darling of the talk-radio set & conservative blogs, the ultimate size of the Democratic win will determine how much capital will have to be spent.

Similarly, the new Administration would seek to remove “the disparity between sentencing crack and powder-based cocaine.” This, in conjunction with talk earlier in the campaign about mandatory minimums may be some of the most cost-effective but controversial criminal justice issues. I’m hoping the experts in such things, Doug Berman, the Sentencing Project, etc, will weigh in quickly.