I like to keep an eye on Doug Berman's blog, Sentencing Law & Policy, because I want to know what the other side is thinking. Generally this can be done by reading the editorials and news coverage (to the minimal extent there's a difference) in the New York Times, but the comments on SL&P tend to be more, shall we say, frank.
Today's SL&P feature focuses on whether this week's primary results cast any light on the role criminal law and sentencing issues might play in November's election, Should sentencing fans be excited about throwing the bums out of DC? In particular, the question is whether the movement for smaller government might be good tidings for those who see our country as "incarceration nation." The theory is that imprisoning criminals is an offshoot of the overcontrolling, overspending and overborrowing government that, for example, the Tea Party movement so strongly opposes.
It isn't, of course. Imprisoning criminals is a long-recognized and essential aspect of sovereign power, accepted from the Founding as part of a properly functioning state. As I show below, the current "Big Goverment" gloss on incarcerating criminals is no more than a trendy disguise for the pre-existing and phony argument that earned punishment is vengeance.
The focus at SL&P is not the one shared by most of the electorate, who show little interest in criminal law issues except when the crime rate is high. After roughly three decades of mandatory minimums, guideline sentencing, and a revived death penalty, the crime rate has returned to the relatively low levels of the 1950's (certainly compared to what it had reached at the end of the anything-goes 1970's).
What conservatives mean when they talk about "big government" is, primarily, a government of vastly increased expense. Specifically, they mean a government whose promises, in terms of the entitlement spending that drives the budget, now grossly outstrip its ability to pay. It has dawned on our citizens that we are headed over the brink, and we are headed there because we have assumed, wrongly and for too long, that the government is responsible for people's lives rather than that people are responsible for their own lives. This same assumption about human nature -- individual responsibility over collective responsibility -- is, not coincidentally, the assumption that provides the moral underpinning of criminal punishment: It would be wrong to punish a person for what he does if it's really everybody else's fault.
So far as I can see, the Tea Party movement is mostly disinterested in incarceration-related issues, except in the mundane sense of wanting to be safe. Prison, and indeed the whole criminal justice system, absorb a miniscule portion of the budget, and thus are the source of only a miniscule portion of the humongous debt that has people so concerned.
At this hour we are getting a preview of the death spiral of the welfare state, that being the widespread rioting in Greece. None of it has to do with criminal justice-related issues. It has to do with Greece's years of promising unaffordable public benefits. We have the same irresponsible dynamic going on here. You could cut prison sentences by 90% and it wouldn't be the proverbial drop in the bucket.
Let there be no doubt about what's going on with the prison-costs-too-much argument that's currently in style with the defense bar and its allies on the Left. It's a head fake. It rings hollow to be outraged about long prison terms and their costs while being oblivious to the astronomically greater entitlement costs that, as everyone knows, are the real driving force of national bankruptcy. The cost argument is merely a make-weight for the defense bar's long pre-existing view that we're too hard on criminals and should be more forgiving and less -- to use their favorite word -- judgmental.
If those of us favoring punishment for criminals that might actually get their attention are indeed excessively judgmental, let's have a debate about that. I just wish the Left would quit pretending it's a debate about cost. When liberals do something about the cost of government other than drive it through the roof, then they can come complaining about the expenses of just punishment. Until then....