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Consensus of Right and Left on Crim Law? Hardly

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Today's News Scan notes Adam Liptak's article in the New York Times. The headlines reads, "Right and Left Join Forces on Criminal Justice." The trends that Liptak notes are interesting, but I think he overstates the case of how much has changed.

After noting that some conservative groups have filed amicus briefs supporting defendants in some cases, the article says, "The development represents a sharp break with tough-on-crime policies associated with the Republican Party since the Nixon administration." No, not really. "Tough on crime" never did mean siding with the prosecution in every case. It meant keeping the trial focused on whether the defendant really did it, not on collateral issues. It meant imposing an adequate punishment for acts that every rational person agrees should be criminal, such as murder, rape and robbery. It did not mean expanding criminal law to cover such things as, e.g., importing lobsters.

The article continues, "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 is a valued advisor to CJLF, and he is just as much "a fervent supporter of law and order" as he ever was. His shop at Heritage was instrumental in coordinating the amici supporting the state in the Graham and Sullivan cases. They also published Adult Time for Adult Crimes to correct some of the misinformation about violent juveniles that the left-leaning think tanks have been pumping out.

Many conservatives now are opposing laws that make issues criminal that should be civil and make issues federal that should be state.  That is far different from the old liberal goals of making the trial an examination of what the police did rather than what the accused did and setting the murderer free because the constable blundered. On issues such as these, the liberal-conservative divide remains as strong as ever. The picture is somewhat complicated by the existence of libertarian groups such as Cato that side with conservatives on economic issues and liberals on criminal law issues, but that is an issue of taxonomy rather than realignment.

Another complication is the fact that the Supreme Court is more conservative than it was in the Warren and Burger years, and that has caused a shift in the issues it considers. Rules of law that overturn convictions for reasons having little or nothing to do with the reliability of the verdict, such as Mapp and Miranda, are fading in prominence as the Court whittles them down. The hot issues today are the Apprendi and Crawford lines of cases, which really are based in the Constitution and actually do have some relation to reliability of the verdict. The conservative "tough on crime" position never was about risking the conviction of innocent people. We were always the ones who agreed with Judge Friendly that innocence is indeed relevant.

The cases noted in the article where conservative groups have supported the defendant are different in kind from the cases that produced the liberal-conservative divide in the past and continue to make that division today. The changing mix of the cases before the Supreme Court is more of a factor producing the occasional odd bedfellows than any emerging consensus.

The trends noted in the article are interesting and important, but let's not get carried away. Conservatives and liberals are still locked in opposition on the death penalty, habeas corpus, the exclusionary rule, Miranda, and every other rule that enables violent criminals to get off easy or get off completely for crimes we know beyond a reasonable doubt they committed. There will not be consensus on those issues until the lefties see the error of their ways, and I'm not going to hold my breath.

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