[Updated: originally posted 11/4/08, updated 11/10/08, final update 11/11.]
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.”
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.
After the 2008 elections, America’s policymakers will take a fresh look at the criminal justice system, which so desperately needs their attention. To assist with that review, leaders and experts from all aspects of the criminal justice community spent months collaboratively identifying key issues and gathering policy advice into one comprehensive set of recommendations for the new administration and Congress. This catalogue is the fruit of those labors.
More than 25 organizations and individuals participated in developing policy recommendations across 15 broad issue areas. They then vetted those recommendations with a broader group of experts, representing a diversity of philosophies and points of view, to assess the substantive and political viability of each recommendation. For each issue area, the document:
• Identifies and summarizes problems;
• Evaluates possible solutions and identifies potential areas of agreement;
• Indicates which parts of government have jurisdiction;
• Notes potential supporters of the identified solutions and discusses opposing arguments;
• Identifies experts who can provide further analysis;
• Indicates the authors of that particular section; and
• Provides hyperlinks to other materials that explore the issues in greater depth.
In addition, the first few sections of the catalogue provide a broad overview of the criminal justice system as it now exists; indicate objectives that must be afforded priority consideration; identify items for executive and legislative action; and list participating individuals and organizations.
Specifically, the report addresses seven core concerns:
Reform of the criminal justice system is a continuing conversation. This document is meant to be a starting place; when reviewing it, please keep in mind some basic principles that should be considered when contemplating any criminal justice reform. These principles include:
1. Fairness and Accuracy — The criminal justice system should treat individuals fairly by providing access to all safeguards and services afforded both by law and common sense. Such treatment includes:
• Providing to people charged with crimes the presumption of innocence, effective representation, and equal access to a fair day in court;
• Ensuring the appropriateness and accuracy of law enforcement policies and practices employed to investigate, charge and prosecute individuals; and
• Working towards a restorative justice system that treats victims with respect and compassion and is responsive to their needs.
2. Elimination of Disparities — Governments should eliminate policies that create racial and other improper disparities, which undermine the goal of equality and fairness under the law.
3. Alternatives to Incarceration — Incarceration should be reserved to punish the most serious crimes. Community placement and supervision that include a combination of sanctions and access to treatment and other services, especially for individuals who have an addiction and/or mental illness, have proven successful. Government should aggressively pursue these alternatives to help ensure more effective and just outcomes.
4. Proportionate Punishment — Sentencing laws should ensure that the punishment fits the crime and that judges have sufficient discretion to impose a sentence no greater than necessary to achieve the ends of justice.
5. Incarceration, Rehabilitation and Reentry — The system should provide rehabilitation to those leaving the prison system and facilitate their participation in society for a successful reentry. Terms of incarceration must be safe and provide access to services that prepare individuals for reentry. Such services include education, training, opportunities for spiritual support, contact with families, treatment for medical and behavioral health problems, and, upon release, access to housing and other essential services.
6. Effectiveness — All strategies and practices that the criminal justice system employs should meet evidence-based or, when possible, scientific standards of effectiveness. This will improve the effectiveness of law enforcement, investigation, prosecution, and punishment; increase the public faith and trust in the system by minimizing mistakes and improving results; and reduce costs by increasing accuracy and reducing recidivism.
7. Cost — More than one in every 100 adults in the U.S. is behind bars. If the 2.3 million people behind bars were a city, it would be the fourth largest in the country. The U.S. prison system costs taxpayers more than $60 billion per year. Prisons and jails are filled with persons who are non-violent, many of whom have an untreated addiction, mental illness, or other disability.