Has the Tough on Crime Era Ended?

Solutions: American Leaders Speak Out on Criminal Justice

Edited by Inimai Chettiar and Michael Waldman

Book Review

Michelle Alexander’s 2010 book The New Jim Crow has helped spark a national debate on the mass incarceration of Africans. Solutions, a collection of essays, is intended as a response. As many are written by presidential hopefuls, the range of solutions is cautious. None of the authors support the most obvious (and popular) criminal justice reform, namely legalizing or decriminalizing marijuana use.*

Likewise there are no essays by anti-Wall Street senators Elizabeth Warren and Bernie Sanders. Both were viewed as prospective presidential candidates when Solutions was being readied for publication.

That being said, I was intrigued to see so many Republican politicians, both of the neoconservative Christian and the libertarian stripe, abandon their tough-on-crime rhetoric to argue for reducing prison populations. The forward, by Bill Clinton, argues that despite extreme political polarization on other issues, ending the incarceration of Americans for minor and victimless crimes is one area ripe for genuine bipartisan cooperation.

In his essay, Marc Levin, Director of the Center for Effective Justice at the Texas Public Policy Foundation, suggests that conservatives, applying their core principles of personal responsibility, accountability and limited government, have become “the most vocal champions of prison reform.” In this regard, he and other key conservatives have clearly parted company with the Koch brothers and the American Legislative Exchange Council (ALEC), which continues to lobby for tough-on-crime legislation and increasing prison privatization.

Levin and editor Inimai Chettiar hold up Texas, Georgia, South Carolina and Pennsylvania as model states, due to their shift from prison building to community based alternatives. As Levin readily admits, Texas reforms were driven by a need to control ballooning prison costs in an era of severe budgetary shortfalls. He brags how Texas has saved taxpayers billions of dollars by eliminating mandatory minimum sentences (allowing judges more discretion in sentencing), by offering drug and mental health treatment as an alternative to incarceration, by increasing formal rehabilitation and through various measures aimed at increasing the employability of ex-offenders (including a provision for law abiding ex-offenders to seal their criminal record).

A few of the essays read like stump speeches, full of vague ideological platitudes without meaningful detail on how prison reform can be accomplished. Others are surprisingly detailed.

Here are some examples:

Vice-President Joe Biden (D): reads like a stump speech and quotes extensively from Martin Luther King. He calls for restoring police staffing cuts and more genuine community policing. Doesn’t explain where the funding will come from, given the massive debt this administration has racked up for bank bailouts and the wars in the Middle East.

Hillary Clinton (D): reads like a stump speech, with frequent references to what Robert Kennedy would do and “my friend” Nelson Mandela. Calls for respect for the law, ending inequality, reforming mandatory minimum sentencing, ending racial profiling by the police, increasing use of drug diversion (ie mandatory treatment as an alternative to incarceration), restoring police staffing cuts, increasing community policing and restoring voting rights to ex-offenders. She also makes no mention of how all this would be funded.

Ted Cruz (US Senator Texas – R): calls for more jury trials and an end to mandatory minimum sentencing. Proposes a federal law requiring prosecutors to disclose all exculpatory** evidence before an accused can enter into a plea bargain. Also supports the Military Justice Improvement Law. This would increase military convictions for rape by transferring responsibility for prosecution from unit commanders to independent federal prosecutors.

Mike Huckabee (former Arkansas governor – R): would eliminate waste by treating drug addicts, rather than incarcerating them. He would also work to build character in American young people by strengthening families.

David Keene (former president of the National Rifle Association (NRA) and the American Conservative Union: would reduce the number of crimes punishable by prison, end three strikes laws (which require mandatory life imprisonment for a third felony), amend grounds for probation revocation so they’re only used to protect communities from violent criminals and end arbitrary police violence against African Americans for nonviolent crimes.

Martin O’Malley (former Maryland governor – D): would abolish the death penalty because it’s expensive, ineffective, wasteful and unjustly applied (poor minorities are far more likely to receive the death penalty because they can’t afford adequate legal representation). He states that only six other (mainly authoritarian) countries have the death penalty: Iran, Iraq, China, North Korea, Saudi Arabia and Yemen. (For some reason he omits Egypt.)

Rand Paul (US Senator Kentucky – R): would end mandatory minimum sentencing, police militarization, disproportionate sentencing of minorities for drug crimes and civil asset forfeiture laws.** He would also allow juvenile/nonviolent offenders to have their criminal records sealed.

Rick Parry (former Texas governor – R): calls for increasing use of drug courts, expanded rehabilitation and mandatory drug and mental health treatment in lieu of incarceration.

Marco Rubio (US Senator Florida – R): would require federal government and regulatory agencies to publish all federal laws and regulations in one place, would end civil forfeiture laws and would rein in “out of control” regulatory agencies. (Me, too. I think they should start putting corporate white collar criminals in jail, but I doubt this is what he means).

Scott Walker (Wisconsin governor – R): advocates for more workplace drug testing and more programs to reduce heroin addiction.

James Webb (former US Senator Virginia – D): would appoint a federal commission on mass incarceration to study the problem some more (you can’t make this stuff up).

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*At present marijuana has been legalized for recreational purposes in four states (Washington, Oregon, Alaska and Colorado) and for medical purposes in 11 other states. Marijuana possession has been decriminalized or reduced to a misdemeanor in many other states. Cannabis possession for any purpose remains a felony in only six states (Wisconsin, Texas, South Carolina, Oklahoma, Louisiana and Alabama).
*Exculpatory evidence is evidence that tends to exonerate a defendant of guilt.
**Civil asset forfeiture is a legal tool that allows law enforcement officials to seize, (without due process) property they assert has been involved in certain criminal activity. The burden remains on the defendant to initiate separate legal action to recover their property, even if they’re acquitted or charges are dropped.

Solutions is published under a Creative Commons license and can be downloaded free at Solutions

Is Left-Right Collaboration Possible?

  Unstoppable: The Emerging Left-Right Alliance to Dismantle the Corporate State.

Ralph Nader (2014)

Book Review

A long time consumer advocate, Nader has spent most of his career battling the corporate takeover of government and US society. Although most analysts place him to the left of the Democratic Party, he frequently allies himself with libertarians and populist conservatives in specific campaigns. He now maintains the only way to restore accountable Constitutional government is by forming what he calls right-left convergences.

Traditional Labels Meaningless

Nader begins by defining “right” and “left,” as both have ceased to have any real meaning. He devotes an entire chapter to dispelling the common myths people from opposite ends of the political spectrum have about each other. He begins by discussing the philosophical architects responsible for the basic principles that underpin conservatism and libertarianism, with special emphasis on Adam Smith, Ludvig Van Mises, Frank Meyer, Russell Kirk and Peter Viereck. He goes on to trace links between contemporary conservatism and the 19th century populist movement in which farmers fought big banks and big railroads. This movement, commonly referred to as the “populist” or “decentralist” movement, would eventually evolve into Goldwater and Reagan conservatism. Nader maintains that many contemporary Republicans who call themselves “conservative” are really corporatists or corporate statists – working primarily for the benefit of the corporations who put them into office.

The US Left represents too many different tendencies – liberals, progressives, socialist, anarchists – to agree on a single overarching political philosophy.

Although Nader doesn’t mention it, many prominent figures identified with the so-called Non-Communist Left have been discredited by accepting major funding from CIA pass-through foundations.¹

Issues Ripe for Collaboration and Potential Obstacles

Nader identifies 25 potential issues that are ripe for collaboration between existing left and right-leaning movements (see below).²

He feels the biggest potential obstacle to potential is the knee-jerk ideological reaction of major party activists. It’s often hard to move Democratic Party loyalists past the tired knee-jerk reaction that conservatives are too narrow-minded, dogmatic and self-interested to be worthwhile coalition partners. Meanwhile many conservatives have the mistaken belief that all leftists are covert socialists who are only interested in big government, more welfare spending, more business regulation, more debt and and higher taxes.

Nader bemoans the tendency of ideologues from both ends of the political spectrum to get so focused in dogma and abstractions that they can’t lose sight of the constitutional crisis in front of them.

This is partly why left-right convergences tend to me more effective at the local level, where people are already shoulder-to-shoulder confronting the practicalities they face everyday. This is certainly consistent with what Susan Clark and Woden Teachout describe in Slow Democracy, their book on local direct democracy. It also reflects the the experience of the Community Environmental Legal Defense Fund (CELDF), which unites activists across the political spectrum in outlawing fracking, toxic sludge, factory farms and water bottling plants.

Examples of Successful Left-Right Collaboration

Unstoppable goes on to provide numerous examples of high profile right-left alignments in Congress (see below). ³

The main value of the book, in my view, is to remind us of the political power of strange bedfellow alliances and to discourage knee-jerk reactions to collaborating with people of different ideological persuasions. Since Unstoppable went to print, a left-right congressional convergence prevented Obama from going to war against Syria, and left-right convergences in Washington and Oregon passed ballot initiatives legalizing marijuana.

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¹Frances Stonor Saunders discusses this at length in her 1999 book Who Paid the Piper? The CIA and the Cultural Cold War.

²Personally, I think Nader’s list is too long. I myself would prioritize 6, 12, 14 and 22, as I already see evidence of left-right collaboration on these specific issues:

1. Requiring annual auditing of the defense budget and that ALL government budgets (including the CIA and NSA) be disclosed.
2. Ending corporate welfare and bailouts.
3. Promoting efficiency in government contracting and government spending.
4. Adjusting the minimum wage to inflation.
5. Introducing specific tax reform as well as pushing to regain uncollected taxes.
6. Breaking up the “Too Big to Fail” banks.
7. Expanding contributions to charity, using these funds to increase jobs and draw on available “dead money” (i.e. recycle wealth from millionaires and billionaires).
8. Legislating to allow taxpayers the standing to sue all government and “immune” corporations.
9. Expanding direct democracy by introducing ballot initiatives in the states that don’t have them and simplifying recall processes.
10. Pushing community self-reliance.
11. Clearing away obstacles to a competitive electoral process.
12. Restoring civil liberties.
13. Enhance civic skills and experience for students.
14. Ending unconstitutional wars and enforcing Article 1, Section 8 of the Constitution, which gives Congress the exclusive authority to declare war.
15. Revising trade agreements to protect US sovereignty and ending fast track approval for treaties.
16. Protecting children from commericialism and the physical and mental harm it causes.
17. Ending corporate personhood.
18. Controlling more of the commons than we already own.
19. Getting tough on corporate crime.
20. Ramping up investor power by strengthening investor-protection laws.
21. Opposing the patenting of life forms.
22. Ending the ineffective war on drugs.
23. Pushing for environmentalism.
24. Reforming health care.
25. Creating convergent institutions.

³ Among many others:
• The left-right coalition that stopped the Clinch River Breeder Reactor in 1983
• The left-right coalition that passed the False Claims Amendment Act in 1986 to protect whistleblowers who uncovered fraud in government contracts. The passage of the McCain (R)–Feingold (D) Act to reform campaign financing in 2003.
• The left-right coalition Ron Paul formed with sympathetic Democrats to introduce a bill to legalize industrial hemp in 2005.
• The bill Ron Wyden (D) and Rand Paul (R) introduced to legalize industrial hemp in 2013.
• The bill Ron Wyden (D) and Lisa Murkowski introducing requiring the reporting of donations over $1,000 to any group engaged in federal political activity.