A Criminal Enterprise

The Right Wing Recognizes the Need for De-Criminalization

Posted in Uncategorized by Bidish J. Sarma on November 24, 2009

I was pleased to read this piece, entitled “Right and Left Join Forces on Criminal Justice” by Adam Liptak in the New York Times today. The article documents an important trend in the politics that govern the criminal justice system: many right-wing politicians and activists have taken a position against over-criminalization. Liptak effectively explains the varying conservative interests that have come together under the “anti-criminalization” banner:

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. . . . 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.

This trend stands in sharp contrast to the “tough-on-crime” conservative line that emerged in the 1980s and swept over the country. The realpolitik need for politicians to support tougher criminal sanctions and the death penalty became self-evident in the past two decades. Criminal punishment, for many years, looked like a one-way ratchet (see this post, explaining “just one single seemingly too lenient sentence has prompted an immediate legislative response, but often decades of seemingly too harsh sentences . . . will barely create a political ripple.”): sentences could only become harsher and the scope of behavior considered criminal could only expand. But, times have apparently changed. For now.

Ideologically, it makes sense that individuals skeptical of government power should hesitate to entrust life and liberty to the same State that they believe is incompetent to administer social welfare programs, regulate the economy, and efficiently tax its citizens. If conservatives harbored such doubts about the government, why did they so willingly give the federal and state government greater power in the criminal context? Why did they support more expansive criminal laws and harsher criminal sentences? Why did they profess such unyielding confidence that the government protects the individual’s right to a fair trial, and does not wrongfully convict and execute innocent people? The simple answer: political expediency.

I firmly believe that the current conservative alignment with liberal thinking on criminal justice issues is a temporary marriage of political convenience. But, it represents an important opportunity to correct some of the harm that has been done in the past 30 years. So long as the economy is a shambles, right-wing politicians can point to overcrowded prisons, burgeoning criminal court dockets, and massive government deficits and say – “see, we need to try something different.”

The Times article indicates that some conservatives have declared the shift in viewpoint to be fundamental. For example:

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.”

Though I wish the shift was truly ideological in nature – as Meese suggests it is – this statement strikes me as nothing more than political posturing. Now is an opportune time to oppose “big government,” and the conservatives know it. Certainly some ideologues will continue to sing the same tune even if the economy rebounds or anti-crime legislation becomes politically expedient again. However, the emerging coalition is realistically a fragile one. I certainly hope that we make progress now.

As far as the death penalty is concerned, I am encouraged by the state legislatures that have sought to cut costs by eliminating capital punishment or limiting the circumstances in which it can be sought. My hope is that we can make enough progress to signal to the Supreme Court that our “standards of decency” have evolved as far as the Eighth Amendment is concerned, and that the perverse institution known as the death penalty will be done away with forever. Though anti-death penalty advocates must first win the battle in the states, those victories are not permanent; instead, they are subject to the will and whims of political opportunism. The fight can only end once-and-for-all in a court of law. Meanwhile, advocates of change in the criminal justice system should seize this moment to push forth the policies that will shrink government budgets, encourage rehabilitation and re-integration, and decrease criminalization.

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