A New Alliance for Criminal Justice Reform? Don't Count On It.
Why talk of a left-right alliance to fight the prosecution state seems unlikely.
Radley Balko November 30, 2009
New York Times Supreme Court reporter Adam Liptak had legal and political opinion websites buzzing last week with a front-page article about non-traditional left-right alliances that may be emerging on criminal justice issues.
In particular, Liptak's piece focused on a project started by the conservative Heritage Foundation that aims to combat what the think tank calls overcriminalization, a broad term that includes the federalization of crime, the expansion of state and local criminal codes, and the ramping up of police and prosecutorial power.
Heritage has taken some heat for the new project, some of it deserved and some not. It's fair, for example, to point out that Heritage and the people who have worked there over the years—such as former Reagan administration Attorney General Ed Meese—should acknowledge their own contributions to the vast expansion of police powers over the last quarter century instead of merely blaming the overcriminalization problem on the left (as Meese did in Liptak's piece). But it's also unfortunate that some liberal outlets—most notably the lefty activist Media Matters website and, following its lead, MSNBC personality Rachel Maddow—have attacked Heritage with the very sort of soft-on-crime accusations traditionally employed by the law-and-order right.
The time would certainly seem to be ripe for new left-right alliances on criminal justice reform. This week, the Senate Judiciary Committee will consider a new bill from Sen. Jim Webb (D-Va.) that would create a national criminal justice commission to review all aspects of America's police, criminal courts, and prisons. Webb's bill comes on the heels of a sobering set of developments. The U.S. has for some time now accumulated the world's largest prison population, both proportionally and overall. DNA testing continues to clear people wrongly convicted and imprisoned for violent crimes. And the federal criminal code has swelled from the three laws proscribed in the Constitution to, by one estimate, more than 4,000 laws today.
Still, the prospect of any sort of lasting alliance seems unlikely, mostly because conservatives, libertarians, and liberals view the legal system in fundamentally different ways. Conservatives believe the primary purpose of the legal system is to protect property and to promote order and stability. Liberals believe it's to promote equality—or to combat inequality. Libertarians put a premium on individual rights, favoring a limited legal system that serves only to protect society from those who cause direct harm to others or their property. If we were to diagram out where the three philosophies favor reform, it would look something like this:
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Radley Balko is a senior editor at Reason magazine.
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