By Neal Peirce, Citiwire:
WASHINGTON — There’s no sane way to say that America’s criminal justice system is “OK.” It costs over $100 billion a year; it imprisons hundreds of thousands for minor drug possession or sale; overall it’s incarcerating 2.3 million men and woman — the most of any nation on earth.
But that didn’t stop 43 Senate Republicans from recently wielding the weapon of a filibuster to torpedo a proposal by Sen. James Webb (D-Va.) for a bipartisan national commission to undertake a stem-to-stern examination of how we apprehend, try and punish in America.
The ostensible reason the Republicans gave was states’ rights — that because the study would encompass state and local practices as well as federal, it would somehow violate our constitutional separation of federal and state powers.
Hello! Is it truly a federal “overreach of massive proportions,” as Sen. Kay Bailey Hutchison (Texas) charged, to ask a carefully balanced bipartisan panel of inquiry, looking for ways to reduce costs, stem recidivism and protect the public, to include the ballooning costs and incarceration at the state-local level in its deliberations? Especially when states and localities incarcerate roughly 10 times more prisoners than the federal system?
And isn’t it close to a national emergency when the country’s incarceration skyrockets six times over in 35 years? Are we that much more evil? Doesn’t the issue cry out for careful examination?
And as Webb noted after the filibuster vote, “There is nothing in the Constitution that precludes Congress from asking some of the best minds of America to come together and give us advice and recommendations on the entire gamut of challenges facing our criminal justice system.”
In preparing the commission bill, Webb said, he’d worked with the law enforcement community, with both liberals and conservatives, and sought the views of many Republicans as well as his fellow Democrats and independents. The legislation cleared the U.S. House on a voice vote in the last Congress, with Republican Lamar Smith, now chairman of the House Judiciary Committee, a co-sponsor.
Webb’s explanation of the turnaround: a rise of “toxic” partisanship in Congress, symbolized by the Senate Republicans’ decision to filibuster so that the commission bill couldn’t even be considered on its merits.
But there’s reason to think even more may be involved: the specter of self-interest lobbying. Salient opposition came from the National District Attorneys Association (NDAA) which describes itself as “the oldest and largest organization representing over 39,000 of America’s state and local prosecutors.”
The NDAA complained the commission membership might not include prosecutors or judges. Eighteen months wouldn’t be long enough to do the job, it asserted. And some $5 million, to finance the commission, would be diverted from Justice Department programs that assist local criminal justice programs.
But then the group tipped its hand: “The NDAA believes that the federal government should never be in the business of auditing state and local criminal justice systems.”
In other words, don’t check us. We should be exempt from critical national scrutiny.
Historically, prosecutors have resisted oversight. And they’re “the most powerful officials in the criminal justice system” — more so than even judges, asserts American University law professor Angela J. Davis (no relation to famed activist Angela Y. Davis).
Why that power? “The charging and plea bargaining power they exercise almost predetermines the outcome of most criminal cases. Over 95 percent of all criminal cases are resolved by a guilty plea,” Davis notes.
She points also to the tendency among some prosecutors to grossly add more charges so that they can wring heavier plea bargains out of defendants. And a “win-win” ethos that easily emerges among prosecutors, most of whom are popularly elected, a temptation to seek big sentences to show the public how tough they are on crime.
And it’s simply wrong to suggest that federal and state-local justice systems are separate and independent, says Anthony Morella, retired American University professor of law. Significant state or local abuse of defendants’ constitutional rights, he observers, can trigger habeas corpus cases, defendants claiming cruel or unusual treatment under the 8th Amendment to the Constitution. Plus, state and local law enforcement receives varieties of federal cash assistance, as well as technical assistance from the FBI and other arms of the Justice Department.
Bottom line: it’s simply wrong to suggest that a federal commission to study practices and make suggestions represents an invasion of states’ rights. A better explanation is that state and local prosecutors, their scope and powers expanded dramatically in the “war on drugs”/”law-and-order” political setting of recent decades, just don’t want the light of objective inquiry thrown on their powers and impact.
Consider then that local prosecutors tend to be well connected politically — as senators well know. “Toxic” partisanship may explain much of the Senate Republicans’ sudden turn against Webb’s eminently reasonable proposal. But given the district attorneys’ fervid opposition, likely not all.
