Punitopia news: tough-on-crime approach in ballot measures, even in so-called "blue states."

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Crime Votes. CJLF Legal Director Kent Scheidegger has this letter in the Wall Street Journal, noting that even as the Democrats were winning Congress, voters were sticking with the tough-on-crime approach in ballot measures, even in so-called "blue states."

http://www.crimeandconsequences.com/

Does it matter that Kent Scheidegger is a Federalist Society member or that the Criminal Justice Legal Foundation is a front group for them?

I'm not registered at the WSJ so haven't read the "letter," but do wonder why "blue states" swung so far to the Right. Well publicized heinous crimes no doubt play a large part. They are convincing. But are they enough to jusitify an unconditional surrender by the Left? After all, if liberal polices can never succeed where it matters most, how can they help when the conditions are less serious? This surrender implies liberal polices can never work and the only answer is a punitopia (utopia through punishment).

This campaign by the Right is obviously 100% successful. The Right may be right. Who knows? But we can be sure of one thing, this is in part due to an orchestrated propaganda machine over the last 30 years. If their success is because they were correct, so be it. If their success is because they got over on the voters, that is another story.

President Clinton says he disagrees with some of the "tough on crime" legislation passed during his administration, but also says he was trapped by the Republicans Congress and had little choice. http://www.talkleft.com/story/2006/09/12/091/72051">Criminal defense lawyers take note: He's far better on our issues than we thought while he was President, from mandatory minimums, to drug courts to restoring the right to vote to former offenders. I'm totally impressed. (Some of the comments at that link question that.) The debate over the Antiterrorism and Effective Death Penalty Act of 1996 and its limiting of habeas corpus still rages on. A public defender view on that:

Through the tyranny of a doctrine known as "harmless error," the California Courts have managed to uphold a startlingly high amount of death sentences, no matter how flawed (the Federal Courts of Appeal in the 9th Circuit has been reversing these rulings an equally startling rate recently). The main thrust of every opinion is this: sure he didn't get a fair trial, and his statement shouldn't have come in as evidence, and the DA shouldn't have been able to bring out the fact that he likes pornography, and the police did do an illegal search, and the defense lawyer was prevented from cross-examining the witnesses, and wholesale hearsay was allowed in without a proper ability to confront it, but hey, we know he's guilty, and those errors were harmless, now let's kill him already.

Courts of Appeal do the same thing, upholding verdicts that are clearly wrong as a matter of fact and law just to ensure that people do not get out of jail. Then they don't publish their decisions, so they never really have to be scrutinized. Or the Supreme Court will depublish (literally wipe it's precedential value off the books as if it never happened, although the decision itself still stands). http://www.publicdefenderdude.blogspot.com/2004_05_01_publicdefenderdude_archive.html#108542538648374062

The Right would disagree, of course, and think the limits on habeas corpus and the "harmless error" rule merely permits the courts to be more efficient. Some might remember the "frivolouse lawsuits" by inmates that was the talking point of the time, and may even agree. That the debate was not about habeas corpus when it actually was should have been a pretty good hint that the debate was not entirely on the up and up.

So the question is this: Do you agree with the Right that "tough on crime" is the only way to go? Or do you think the new Democratic sweep should be skeptical of the Federalist Society's punitopia? Has "tough on crime" led us to any sense of punitopia? Are things getting better enough that we should "stay the course"? Evidently "blue state" voters think so. Why?

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1. On the death penalty

Kent Scheidegger's Answers to Questions

Kent Scheidegger has been the Legal Director of the Criminal Justice Legal Foundation since December 1986. He has also served as Vice-Chairman of the Criminal law and Procedure Practice Group of the Federalist Society since 1996. His articles on criminal and constitutional law have been published in law reviews, national legal publications, and congressional reports. Legal arguments authored by Mr. Scheidegger have been cited and incorporated in several precedent-setting United States Supreme Court decisions.

Q. Why do you support or approve of the death penalty?

A. The death penalty serves three functions. First, for some crimes any lesser punishment is inadequate as a matter of basic justice. In 1972, when the death penalty was temporarily abolished, murderers such as Charles Manson and Richard Speck received commutations to life in prison. They were not punished sufficiently for their crimes, and I believe that is fundamentally wrong.

Second, an executed death sentence absolutely guarantees the killer will never kill again. A life sentence does not. There are many cases of people killed by murderers who were paroled, escaped, killed within prison, or who arranged murders from within the prison. In one particularly notorious case, a murderer sentenced to life in prison for his first murder arranged from within prison for the murder of the witnesses, in retaliation for their testimony. Three innocent people are dead because he was not executed for the first murder.

Third, I believe that an effective, enforced death penalty deters some murders. Studies go both ways on this, so one cannot say that it has been conclusively proven either way, but stop and think about it. A rapist knows he will go to prison for a very long time if he is caught, and he can reduce his chances of being caught by killing the victim. If the difference in punishment between rape and murder is 20 years versus life, he has far less incentive to let the victim live than he does if the penalty for murder is death. Is the argument really credible that no rapist ever decides to let a victim live because he fears the death penalty? I believe many innocent lives will be saved. One is enough.

Q. Have you ever witnessed an execution?

A. No.


Q. What conditions must be met in order to be granted habeas corpus?

A. There must have been a constitutional error at the trial, with a substantial and injurious effect. The petitioner must have raised his objection at the proper time.

Q. Does racial discrimination in implementing the death penalty exist today?

more: http://www.abanet.org/publiced/noys/01/transcripts/scheidegger.html