[lbo-talk] Why Constitutional Rights hurt the Poor (Re: Lawyers Should be Indicted (Re: [

Nathan Newman nathanne at nathannewman.org
Wed Jun 2 15:23:26 PDT 2004


----- Original Message ----- From: "Dennis Redmond" <dredmond at efn.org>

Nathan:
> Frankly, I find the whole left focus on the civil liberties of the guilty
> misguided

Dennis: -Guilty of what? Hundreds of thousands of prisoners are junkies, who need -medical treatment, not police batons.

Absolutely-- I don't consider them guilty of anything.

But the question is whether the perception that people commiting serious crimes are getting off on "technicalities" doesn't end up hurting those junkies by leading voters to extend prison sentences.

Look, put this in a political Benthemite analysis, who once noted that prison sentences should be proportional not just to the severity of the crime but also to the likelihood of getting caught and convicted. If everytime someone commits a crime they get put in prison, a relatively short prison sentence will rapidly deter that action. The less likely they are to get caught, the longer the prison sentence needs to be to deter that same crime.

Whether this analysis works in practice, if people vote based on that kind of analysis, it is not unreasonable to see the ever lengthening prison terms inflicted on low level crimes as stemming from the perception that the guilty are getting away with their crimes too easily. So civil liberties for serious criminals may, through the perception that people aren't not likely to get punished for crimes in general, lead to harsher sentences on low-level drug crimes.

The reality is that the three decades since the Warren Court supposedly expanded constitutional rights, the most significant fact one has to observe is that the prison population has exploded.

In practice, what was gained for the poor and non-white from those rights? People go to jail in any case-- prison sentences have just been lengthened and low-level crimes have escalated in seriousness of consequences.

The perversity of imposing due process rights leading to bad political results was highlighted by Justice Hugo Black when he dissented from expanding due process rights for welfare recipients. He argued that making it harder to take people off the welfare rolls could easily lead to a backlash where the public then prevents them from getting on the rolls in the first place:

"the end result of today's decision may well be that the government, once it decides to give welfare benefits, cannot reverse that decision until the recipient has had the benefits of full administrative and judicial review, including, of course, the opportunity to present his case to this Court. Since this process will usually entail a delay of several years, the inevitable result of such a constitutionally imposed burden will be that the government will not put a claimant on the rolls initially until it has made an exhaustive investigation to determine his eligibility. While this Court will perhaps have insured that no needy person will be taken off the rolls without a full "due process" proceeding, it will also have insured that many will never get on the rolls, or at least that they will remain destitute during the lengthy proceedings followed to determine initial eligibility." ---Goldberg v. Kelly, 397 U.S. 254 (1970)

And substantively, liberal analysts of the effects of Warren Court civil liberties decisions have found little empirical gains from those decisions. Gerald Rosenberg in his book, "The Hollow Hope: Can Courts Bring About Social Change", documents the near complete failure of Miranda, Mapp, the exclusionary rule et al to significantly improve the treatment of the accused.

On an empirical basis, we may have gotten the worst of all worlds from the Warren Court decisions: a perception of increased rights for the accused, leading to a backlash increasing prison terms along Benthemite predictions, but without actual gains in rights for defendants.

And thus the explosion of the prison population to 2 million people.

-- Nathan Newman



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