Case Overview, Criminal Justice Reforms

           Crime is a hardy staple of political life. No one is for crime and every politician has a strong stand against it. For many decades now, the preferred solution to crime has been standing ever more tough on criminals. This means that over time laws have been passed that mandate harsher sentences, reduce opportunities for parole, and provide less flexibility for judges. California's "three strikes" law, for example, requires a life sentence after conviction of a third crime. As sentences have gotten longer and the prison population has swelled, the crime rate has dropped. Although logically the two would seem to be related, the relationship is not so simple and other reasons have been cited for the crime drop. One alternate explanation is that this drop in the crime rate also coincided with a reduction in the size of the cohort of young males, the most crime-prone segment of the population. Nevertheless, the legislators' answer to the crime problem has satisfied the public's demand that something be done.
           One of the consequences of the get-tough-on-crime trend has been a growing and disproportionately large prison population of African Americans and Hispanics. Civil liberties and civil rights groups make the case that this development reflects more than the result of a disproportionate share of the crimes committed by these groups. Rather, they claim that there is discrimination in the criminal justice system, starting with the police on the beat, but including legislators and judges too. For example, critics point to the differential in sentencing for possession of crack cocaine vs. powdered cocaine. Whatever the end-use form of the drug, cocaine is cocaine. Yet penalties for crack cocaine, used predominantly by inner city blacks, are more severe than the penalties for the powdered form that is more popular with white suburbanites. Evidence has also emerged about racial profiling, the police practice of aggressively monitoring members of minority groups. African Americans sometimes joke that they have to worry about committing the crime of "driving while black."
           During the 106th Congress some liberal organizations began to think of ways they might convince legislators that the pendulum has swung too far. Said one lobbyist, "We think this tough-on-crime movement has sort of peaked and that for the first time there is some wiggle room where the politicians don't have to vote for just the toughest thing." Thus a coalition of Washington-based organizations interested in reforming the criminal justice system began to meet to talk about how to increase awareness of the problems they saw and to formulate a viable legislative strategy.
           These groups took hope from a burgeoning movement against the death penalty, the first step back from four decades of ever-increasing penalties against criminals. A small number of states have implemented moratoriums on use of the death penalty in the wake of more cases of the wrong individual being sentenced to death. As the public accepted such moratoriums with equanimity and conservative legislators failed to criticize their reform-minded colleagues for being soft on crime, liberal groups hoped that there was an opening for a broader reconsideration of the criminal justice system.
           But their hope was not answered. There was no broad sentiment in the Congress for a rethinking of criminal sentencing. As a result there was no serious consideration of legislation in this area in 1999-2000. When the Republicans took the White House in the 2000 election and Bush appointed John Ashcroft as Attorney General, the liberal groups found themselves facing a daunting swim upstream.