Adam Liptak at NYT:
In the next several months, the Supreme Court will decide at least a half-dozen cases about the rights of people accused of crimes involving drugs, sex and corruption. Civil liberties groups and associations of defense lawyers have lined up on the side of the accused.
But so have conservative, libertarian and business groups. Their briefs and public statements are signs of an emerging consensus on the right that the criminal justice system is an aspect of big government that must be contained.
The development represents a sharp break with tough-on-crime policies associated with the Republican Party since the Nixon administration.
“It’s a remarkable phenomenon,” said Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers. “The left and the right have bent to the point where they are now in agreement on many issues. In the area of criminal justice, the whole idea of less government, less intrusion, less regulation has taken hold.”
Edwin Meese III, who was known as a fervent supporter of law and order as attorney general in the Reagan administration, now spends much of his time criticizing what he calls the astounding number and vagueness of federal criminal laws.
Mr. Meese once referred to the American Civil Liberties Union as part of the “criminals’ lobby.” These days, he said, “in terms of working with the A.C.L.U., if they want to join us, we’re happy to have them.”
Liptak notes that the Court’s 2002 decision in Atkins v. Virginia, indicating that an IQ of “approximately 70” would qualify a defendant as “mentally retarded,” has spawned extensive litigation, and he suggests that a similar result could occur in juvenile cases if the Court imposes a subjective standard.
Tim Lynch at Cato:
There’s plenty to be concerned about — overcriminalization, federalization of crime, and the militarization of police tactics. I told the reporter that Cato has been uniquely positioned on this subject — that is, we remind our friends on the left that businesspeople have their rights violated all the time. And we remind our friends on the right that police and prosecutors abuse their powers in the “blue collar” context as well. It is encouraging that more organizations are taking a more skeptical view of government power generally and are embracing more principled positions with respect to the rights of the accused set forth in the Constitution.
Conn Carroll at Heritage:
Explaining the Heritage Foundation’s overcriminalization project, former U.S. Attorney General and Heritage Foundation fellow Ed Meese tells the New York Times that the “liberal ideas of extending the power of the state” are to blame for an out-of-control criminal justice system.
I doubt that Meese or his employers at the Heritage Foundation are going to start listing pornography or cannabis among the things that are “over-criminalized,” or worrying about the astounding expansion of state power reflected in keeping 2.4 million people behind bars. Their focus is on the federal system, which means they’re leaving out 90% of the issue, since the federal system has fewer than a tenth of the prisoners.
When you start hearing the people who call themselves fiscal conservatives acknowledging that a five-year sentence for five grams of crack means spending $200,000 of public money to punish a $500 transaction, or listing over-incarceration as an example of “wasteful government spending,” then you can consider whether the conservatives have actually recovered from their mindless love affair with cruelty toward “criminals.” Until then, the least hypothesis that covers the facts is that they’re just worried about some of their rich buddies going to the clink.
Pareene at Gawker:
You know, Ed Meese III, it is nice that you have come around, in some fashion, to the idea that we maybe shouldn’t have the largest prison population in the world. Seriously, good for you.
But also, and more importantly: fuck you, Ed Meese.
It was actually Reagan’s Attorney General, Mr. Ed Meese, who attempted to criminalize pornography and abortion, and who packed the federal judiciary with reactionary “tough-on-crime” assholes.
Ed Meese, once again as Attorney General, chaired the National Drug Policy Board. And during his tenure, federal spending on drug “enforcement” (arrests and seizures) increased by $700 million while drug prevention and education programs decreased. Ed Meese decided every worker in America should be drug tested all the time.