The NYT reports on increasing involvement by conservative organizations and business groups on behalf of criminal defendants. While libertarians have long complained about “overcriminalization” and excessive federalization of criminal law, such concerns have gained increasing currency in more traditional conservative circles. This is a good thing. [UPDATE: But not according to Media Matters.]
QUICK ADDENDUM: Of course some conservatives have long been concerned about “overcriminalization.” National Review‘s Frank Meyer, for instance, was a fierce critic of Frank v. Maryland and his brand of fusionist conservatism was suspicious of all government power. Yet many so-called “law and order” conservatives were less sympathetic to such concerns, and these conservatives began to have significant influence on the Republican Party beginning with the Nixon Administration and continuing thereafter. Some of the excesses of environmental enforcement conservatives complain of today were actually pioneered by law-and-order types in the Reagan Administration. So I think it is fair to suggest that many conservatives are late to this party.
Blue says:
I’ve been pondering how the Republicans might address this as a policy platform for the last couple of weeks. One idea I had is a “ten percent cut”–a promise to purge at least 10 percent of the text and laws from the US Code in, say, four years. After that, institutionalize a process that periodically reviews and recommends statues for straight-up removal.
November 24, 2009, 9:11 amPatrick says:
And already liberals are demonizing them for it:
http://reason.com/blog/2009/11/09/media-matters-slams-heritage-f
November 24, 2009, 9:25 amWidmerpool says:
Actually, it’s the NYT that’s once again late to the party–Justices Thomas and Scalia have railed against overcriminalization for at least the past decade (nice of the NYT to give them a back-handed mention at the end of the article). Indeed, the big fight over sentencing guidelines has pitted them against the likes of Justice Breyer.
November 24, 2009, 9:26 amDavid M. Nieporent says:
In having this discussion, I think it’s important to distinguish between libertarians and federalists. Some conservatives have always been small government types who oppose overcriminalization generally; others are still big law-and-order types, but they just think the laws belong at the state level rather than the federal level. You can think that, e.g., prostitution or gun possession or a state official taking bribes ought to be crimes without thinking that the feds should be prosecuting them.
November 24, 2009, 9:38 amDavid M. Nieporent says:
Of course, if I bothered to read posts before responding to comments, I’d see that Prof. Adler already noted those points, but whatever. I’m hungover from Aldridge’s Bingham.
November 24, 2009, 9:40 amNevadausa** says:
The enactment of statutes for the crime du jour is not the problem.
The problems are more fundamental: How does the Supreme Court interpret the 4th, 5th (crim-pro parts), and 6th Amendments.
It’s great that the 6th A’s Confrontation Clause has, at least on the surface, been invigorated. And it’s wonderful that certain sentencing issues require a jury finding under the 6th A.
But the 6th A only matters after someone’s been indicted.
A more serious conversation would speak to pre-indictment problems — such as how the 4th A has been gutted.
November 24, 2009, 9:50 amkrs says:
To add the obligatory note of cynicism, the only defendants conservatives seem to have discovered are white collar defendants like Skilling and Black, and the concerns about “overcriminalization” seem to be much more specific: the concerns are with “honest services” law and its lack of specificity that allows the government to prosecute people for being merely shady, as opposed to breaking any clear rules. The notion that conservatives are late to the party suggests that they’re at the same party as people who have traditionally pushed for more rights for criminal defendants. I don’t think they are.
November 24, 2009, 10:30 amHouston Lawyer says:
Punishment of the “right” criminals will always be popular in certain quarters.
But since we are all criminals now, it is important that limits be emphasized.
November 24, 2009, 10:33 amJoe says:
Principled people from all sides are always nice to read about. After all, liberals love to cite Justice Harlan (II) in Poe v. Ullman.
As to Scalia/Thomas — sometimes. See, e.g., Scalia’s peon against overcriminalization of marijuana … oh wait. Thomas is more consistent (see also his vote in a excessive fines case involving undeclared money vs. Scalia’s vote), but overcriminalization is not the same thing as unconstitutional criminalization.
November 24, 2009, 10:47 amDave N. says:
krs,
I didn’t realize that attempted murder (the underlying offense in Crawford v. Washington) or discharging firearms into an occupied structure (the underlying offense in Apprendi v. New Jersey) were now considered “white collar.”
Or is your claim that Justices Scalia and Thomas really aren’t conservative?
November 24, 2009, 10:53 amDotar Sojat says:
Seems like all of the support for Corey May came from the Center and the Right. I always wondered why not from the Left.
November 24, 2009, 10:55 amOren says:
Can we distinguish between belief in over-criminalization and being law-and-order (I consider myself a law and order liberal/libertarian)? Believing that gambling or toking should not be a crime does not equate to wanting to let a rapist sentenced to 50 years out after 11 so he can continue to prey on the innocent. (Just to pick a random topical example). Nor does it equate to the idea that a criminal should go free for procedural (not constitutional) reasons.
In fact, I think both of those beliefs are complementary – the more pointless criminal laws we excise, the more cop-time and prison space we can devote to violent criminals whose crimes have real victims.
Of course, after their commentary (PDF) on Lawrence v. Texas, I somehow doubt that the Heritage Foundation has finally seen the light on whether moral opprobrium justifies legal restriction in the absence of a (separate) government interest. I’m skeptical, that’s all.
November 24, 2009, 10:55 amkrs says:
Dave N., I’m talking about the “discovery” described in the NY Times article where think tanks and conservative advocacy groups are suddenly joining the “party” and concerned about criminal defendants.
Scalia and Thomas are both principled conservatives, in my view. For Scalia in particular, I can think of several examples where he sticks to his principles and his formalism benefits criminal defendants (Apprendi, Hamdi dissent). That’s separate from the point I was trying to make.
November 24, 2009, 11:03 amDonald Kilmer says:
CalGuns Foundation, (Gene Hoffman, Chairman) has been funding criminal defense cases against some of California’s insane gun laws for two (2) years now. They pick “clean” cases where the defendant committed no violent act, but was merely charged with possession of an “evil, but legal” gun. The cases are usually dismissed because even the D.A. and police can’t figure out CA’s complex laws regulating weapons.
November 24, 2009, 11:24 amtroll_dc2 says:
I agree that there are too many federal criminal laws that are overbroad as well as problematical in other respects. But if we did not have broad federal laws, how could we deal with corruption in places like New Jersey, Philadelphia, and Scranton-Wilkes-Barre? In that third location, not only is the state judicial system corrupt (it is a lot more than just two corrupt judges), but even teachers have had to pay to get a job teaching in public schools. It is unrealistic, given the political, social, and cultural context, to expect the relevant state and local authorities to address these sorts of problems.
November 24, 2009, 11:50 amClayton E. Cramer says:
As other commenters have pointed out, one can be a law and order conservative and still oppose federalizing every crime. Even at the state level, if you reach the point where the major restraint on behavior is the criminal justice system, you’ve already lost the battle. At least in most parts of America, what prevents someone from murdering you isn’t the police, or even that you might shoot back. It is that the vast majority of people have been raised with antiquated ideas like “You shall not murder.”
November 24, 2009, 11:58 amrick.felt says:
I tend to agree with Oren here: toughness on crime is not synonymous with criminalizing harmless activity.
What pleases me most about this is that my fellow conservatives are starting to realize that Big Government is Big Government is Big Government, even if some portions of it do things that we like. Big Government isn’t any less likely to avoid wasting money and doing stupid stuff at the Justice Department than it is at the Department of Education.
November 24, 2009, 12:06 pmClayton E. Cramer says:
In the twentieth century, as governments expanded the scope of what they attempted to do, their ability to perform the functions of their traditional role declined substantially. At the same time, the expansion of their scope seems to have resulted not in doing vastly more good, but in unintentionally doing far more harm. Sometimes this is intentional (Holocaust, Gulag), but often it was the law of unintended consequences. The first person convicted in California of possession of armor piercing handgun ammunition was a bank president (who didn’t know what he had in his handgun was illegal). The enormous environmental damage done by the Soviet Union in places like the Aral Sea, or on a lessse scale, the dam building projects of the U.S. government.
November 24, 2009, 12:15 pmClayton E. Cramer says:
There’s a difference between, “This should be illegal” and “This is constitutional.” I don’t see any strong argument for criminalizing what consenting adults do in private, but that doesn’t make it unconstitutional.
November 24, 2009, 12:18 pmOren says:
Are you intentionally letting States off the hook here? As far as I can see, overcriminalization pervades all levels of government.
November 24, 2009, 12:21 pmOren says:
I think you have applied the rational basis test incorrectly in this instance. :-)
November 24, 2009, 12:23 pmrick.felt says:
Are you intentionally letting States off the hook here? As far as I can see, overcriminalization pervades all levels of government.
It does, of course, but to correct the problem you have to start somewhere. Starting at the Federal level makes the most sense. Until the Federal government gets out of the way, what the states do is largely irrelevant.
Also, Federal laws tend to be poorly tailored. Federal law is one-size-fits all. But there may be laws that are necessary and proper in one state that are burdensome in others. Utah’s overcriminalization may be appropriate for Delaware.
November 24, 2009, 12:56 pmAllan says:
Conservatives only get onboard when their own are being prosecuted. For that matter, so do liberals.
Liberals think that rapists who use their power to take sex from unwilling women should be jailed for a long time. Conservatives, too.
Liberals think that people who who use their power to take money from those who are less sophisticated should be jailed for a long time. Conservatives, not so much.
Conservatives (of the social variety) think that people who perform abortions should be jailed for a long time. Liberals, not so much.
November 24, 2009, 1:17 pmSeamus says:
Because, unlike Mumia Abu-Jamal, he was only defending his home and his daughter.
November 24, 2009, 1:47 pmegd says:
I think you mean Cory Maye not Corey May.
November 24, 2009, 2:45 pmJohn Moore says:
I think a lot of the overcriminalization is a response to the dramatic crime rate rise that peaked in the early ’90s. This roughly coincided with (but was not directly or completely caused by) the increase in criminals being let off on “technicalities.” Hence the backlash. There were also a lot of pols and judges who operated on pseudo-scientific theories about the causes and “treatment” of crimes, and a public backlash to that – such as reducing judicial freedom in sentencing.
To frame this as a “conservative” issue is a bit much. While it is true that conservatives were a lot less friendly to the “soft” treatment of crime, it is also true that ordinary Americans were justly scared of the perceived consequences.
At least conservatives, for the most part (drugs being an egregious exception) sought criminalization and punishment at a local level. Much more dangerous is the federalization of crime – often favored by the left.
November 24, 2009, 2:50 pmOren says:
Why? For most people, the largest threat of prosecution comes from the local or State level — the DOJ is often frying much larger fish. State and local police outnumber the Feds 100:1 (guess) and come into far more contact with the average citizen.
In my experience, they are far better drafted than local laws, which generally read like they were written by someone with no legal familiarity.
November 24, 2009, 3:00 pmOren says:
I fail to see how a petty and overbearing town council (for instance, the recent trend towards banning clotheslines in my parts) is any better than a petty and overbearing Congress. There are thousands of the former with no real business other than to harass and annoy the citizenry, all of which have a (relatively) larger enforcement arm. In contrast, there is only one Congress, with a full plate of actual policy to make and their enforcement is spread very thin.
At least in my experience, State and local law has always been far more vexatious than Federal policy, even where I find the latter to be unbelievably irksome. It has more direct impact on my actual life.
November 24, 2009, 3:08 pmJohn Moore says:
I thought we were talking about criminalization. I’m no fan of petty town councils, but you know what… you can move to another town. Also, your voice is much more likely to be heard and effective at that level, and you can organize more effectively.
I’d just as soon not have to move to another country if the feds criminalize exhaling CO2 or something else of the stupidity they seem headed towards.
November 24, 2009, 3:20 pmDotar Sojat says:
Corey Maye. Still wondering.
November 24, 2009, 3:23 pmJeff says:
The issue of overfederalization of crime policy (especially re the war on drugs) is addressed in our recently published book, “Presidential Rhetoric and the Public Agenda: Constructing the War on Drugs” which can be found here:
November 24, 2009, 3:24 pmhttp://www.amazon.com/exec/obidos/ASIN/0801893461/thevolocons0d-20/
Malvolio says:
That’s a charming, but naïve (imo) view. The rise in crime might have been an excuse for the laws, but it’s hard to see why fears of being raped or murdered would be assuaged by (for example) making guitars illegal.
Because moving to another town is much less traumatic than moving to another country; because I can walking into my councilman’s office (and my congresswoman’s office is 3000 miles away); because the town council is unlikely to use armed troops to back up its clotheslines bans (unlike the armed raids against those evil guitar makers linked to above).
November 24, 2009, 3:47 pmrick.felt says:
Why? For most people, the largest threat of prosecution comes from the local or State level — the DOJ is often frying much larger fish.
Because the fish rots from the head down.
Let’s use marijuana as an example. The states can legalize it for medical use or for recreational use, but until it’s taken off of Schedule 1, its use and possession will still be illegal under Federal law. Now that may not directly affect the private user (the DEA isn’t going to bust you for a joint the way a local cop might), but the business of growing and distributing marijuana is still going to be conducted on the black market. If you’re in the business of distributing marijuana, you still have to be pretty sly about it, lest you attract attention from the feds. Everyone involved is going to be waiting for the other shoe to drop. Until federal law changes, you simply can’t have a completely legitimate marijuana business, so the trade will continue to be operated substantially by organized crime.
I would agree that federal laws tend to be drafted better. However, that doesn’t solve the problem of those laws being one-size-fits all. At this risk of being excoriated on this very pro-second-amendment website, I’ll point out that the gun control laws appropriate in Montana might not be the same gun control laws that are appropriate in Compton. A law that might be “overcriminalization” in one locale might not be “overcriminalization” in another. Alas, under Federal law, that’s what we’re stuck with.
November 24, 2009, 3:54 pmKirk Parker says:
Oren,
I don’t anybody here thinks it’s a bad idea if you want to take on your local government(s) over the clothesline issue. You can set an example for opposing (and scaling back) local over-criminalization that the rest of use can point to, and perhaps follow.
Go for it!!!
November 24, 2009, 4:59 pmfishbane says:
(As others have noted, there’s no ‘e’ in his name.)
Selection bias, perhaps? Jeralyn Merritt at TalkLeft has been posting on the case for years, I know it has come up more than once at both FireDogLake and HuffPo, and I’ve seen it talked about on a bunch of other lefty blogs over the years.
Radley Balko, of course, rightly is the first blogger one thinks of, and he’s an actual libertarian (contrasting with the ‘Republican who smokes pot’ and Instapundit sorts), so more difficult to place on the rather useless left-right scale.
November 24, 2009, 6:05 pmArthurKirkland says:
Many conservatives are not “late to the party.” They aren’t even on their way to the party.
I observe conservative interest in defendants’ rights when (and, largely, only when) a Scooter Libby or Conrad Black or Rush Limbaugh is being prosecuted. Otherwise, a standard conservative approach to criminalization is to prefer severe penalties for doobie-smoking, dirty-movie-watching, bong-selling and flag-burning, and a standard conservative approach to defendants’ rights is to discount the notion of a constitutional right to avoid the death penalty on the basis of actual innocence.
Late to the party? Because someone might be having fun at the party, most conservatives appear to want to shut it down.
November 24, 2009, 7:59 pmOren says:
No, my job and my life are here. I’m not going to incur major transaction and convenience costs to remedy a minor irritant. It’s insane to think that anyone would seriously contemplate disrupting their life in order to trade one meddlesome city government for another.
Moreover, town politics (at least around here) are even more opaque than national politics. Every council election is uncontested.
Wow. You must be trying really hard to misunderstand what’s going on in order to conclude that guitars are what’s being made illegal there.
(1) My councilman doesn’t have an office, even if he did, why would he listen to me? He won his last election by 80% (the remaining 20% being spoiled or write-in).
(2) If you don’t pay the (civil) citation for line-drying, a contempt order will be issued. At that point, most people would give up but I’m sure an obstinate violator would find armed men at his doorstep sooner rather than later.
November 24, 2009, 8:29 pmOren says:
You seriously think I’m going to exert any time and effort over something like this? I have a job, friends, family and a life. Picking my naval lint strikes me as a far more valuable than fighting petty battles over local policy.
That, in fact, is kind of my point — only those folks without a life are involved in the banality of local politics. Consequently, the quality of the governance is fairly low since anyone with real skills is doing something productive.
November 24, 2009, 8:36 pmArthurKirkland says:
More party-pooping.
November 24, 2009, 10:09 pmKirk Parker says:
Oren,
“State and local law has always been far more vexatious”. Check.
“It has more direct impact on my actual life.”. Check.
“You seriously think I’m going to exert any time and effort over something like this?”. Oh. OK, noted.
November 24, 2009, 10:41 pmOren says:
Larger != Large. State and local laws are IMO more vexatious than Federal ones and have quite a bit more impact on my life. The relationship between those irritants says nothing about how much I’m willing to exert over the matter. As it happens, I have better things to do than engage with either of them.
Moreover, campaigning against a single annoying law (like line-drying, fireworks-bans) accomplishes virtually nothing. At the end of the day, there are still a multitude of State and local laws (and the correspondingly much larger number of enforcers of those laws).
November 24, 2009, 11:35 pmJaimeInTexas says:
I have a saying:
I sure hope that the NYT report is correct. I consider myself a Conservative and I this been a concern for a long time. It seems like everything these days violates some kind of criminal statute.
November 25, 2009, 10:28 amGuy says:
Yes, the Heritage Foundation, which is a very conservative organization heavily associated with the religious right, obviously decided to compare Lawrence v. Texas to Dred Scott, Plessy, and Lochner, implying it to be an act of “judicial usurpation”, solely because of general beliefs about the nature and proper application of the rational basis test, certainly not because of their opinion on the subject matter at all. The most that could be said for them is that maybe they didn’t support the crime, but were worried about future gay marriage cases (i.e. they’re not homophobic supporters of over-criminalization, just regular homophobes). I, personally, am not willing to give them even that much of the benefit of the doubt. I think they have made their policy preferences abundantly clear.
November 25, 2009, 11:52 pmJohn David Galt says:
Why stop at 10%? I fail to see any language in the Constitution that authorizes Congress to delegate legislative powers to executive-branch agencies. So let’s get a court to overturn the entire Code of Federal Regulations. Make Congress pass every word of regulations themselves, preferably after reading them out loud at least twice, and I’ll bet there’ll be a lot fewer of them.
A constitutional amendment with a “sunset clause” would help, too.
November 28, 2009, 4:40 pm