Most liberals never lost sight of the potential for evil in big government. They have consistently opposed government power in matters of personal and political belief. Liberals are not unconcerned with economic liberty, but they have come to believe that the common good requires that social justice be given a higher priority than absolute economic freedom.
Conservatives are—and always have been—on the other side of both questions. They are much more prone than liberals to limiting personal and political liberties, but they place the freedom of an individual to do as he pleases in the economic realm at the top of their concerns. Social justice has held a lower priority for conservatives, from the days of Alexander Hamilton when they favored strong government as a means of protecting their economic privileges to the days of Ronald Reagan when they see government as an instrument of social justice and therefore a threat to their economic position.
The American Law Institute, instrumental in structuring the model statutes on which most death sentences are based, has withdrawn its support of such laws.
By Michael Traynor
February 4, 2010
Nearly 50 years ago, as concern grew in the country about the fairness of death penalty laws, the American Law Institute published a "model statute" aimed at helping state lawmakers draft laws to ensure that death sentences were meted out fairly and consistently.
Last fall, the institute withdrew its support for the model death penalty law. The decision was a striking repudiation from the very organization that provided the blueprint for death penalty laws in this country.
The institute, with a membership of more than 4,000 lawyers, judges and law professors of the highest qualifications, is the leading independent organization in the United States producing scholarly work to clarify and improve the law.
In the decade after the institute published its law, which was part of a comprehensive model penal code, the statute became the prototype for death penalty laws across the United States. Some parts of the model -- such as the categorical exclusion of the death penalty for crimes other than murder and for people of limited mental abilities -- withstood the test of time. But the core of the statute, which created a list of factors to guide judges and jurors deciding when to sentence someone to death, has proved unworkable and fostered confusion and injustice.
Now, after searching analysis by our country's top legal minds, the institute has concluded that the system it created does not work and cannot be fixed. It concluded that we cannot devise a death penalty system that will ensure fairness in process or outcome, or even that innocent people will not be executed.
I am speaking for myself, not as a representative of the institute, but I can say with certainty that the institute did not reach these conclusions lightly. It commissioned a special committee and a scholarly study, heard various viewpoints and debated the issues extensively. A strong consensus emerged that capital punishment in this country is riddled with pervasive problems.
The death penalty cannot balance the need for consistency in sentencing with the need for individualized determinations. Its administration is unequal across racial groups. There is a grave lack of resources for defense lawyers. The law is distorted by the politics of judicial elections, and it consumes a disproportionate share of public resources.
California's death penalty exemplifies these problems. Portions of California's law were copied from the institute's model statute. The system now is on the verge of collapse. There are about 700 people on death row in California, and it can take 25 years for mandatory appeals to be completed. Since 1978, California has executed 13 prisoners, while 72 have died of old age or other causes.
Resources are woefully inadequate. More than half of the people on death row don't have access to a constitutionally-required lawyer. A statewide commission found that there remains a serious risk that the state will execute an innocent person. And then there is the cost. Housing a prisoner on death row costs taxpayers $90,000 a year more than if that prisoner were held in another type of high-security prison. The total additional cost for housing all of California's death row inmates is more than $60 million a year.
These problems are entrenched in the death penalty system, both in California and nationwide. The cumulative result: Executions remain as random as lightning strikes, or more so, and that is the very problem the institute's model statute intended to fix. In addition, across the country, at least 139 individuals have been released from death row after establishing their innocence.
The institute's action comes at a time of widespread reevaluation of capital punishment. Fifteen states have abandoned capital punishment, including three in the last three years. In 2009, the country saw the lowest number of death sentences since the death penalty was reinstated in 1976.
We now have decades of experience, which the institute lacked when it proposed its model statute almost 50 years ago. Life without the possibility of parole, now an important alternative in nearly every state, was then virtually untried. To the extent that society needs to punish murderers severely, it can do so far more effectively using tough yet fair prison sentences rather than through an ineffective and extravagant death penalty.
The American Law Institute could have chosen to do nothing. But having laid the intellectual and legal groundwork for the modern death penalty, it concluded that it had a responsibility to act now that the system's fatal flaws have fully emerged.
The withdrawal of the model death penalty statute recognizes that it is impossible to administer the death penalty consistently and fairly, and it therefore should not remain a punishment option in this country. The institute could no longer play a role in legitimizing a failed system. How much longer can any of us?
Michael Traynor is president emeritus of the American Law Institute and lives in Berkeley.
Sunday, January 24, 2010
The Democratic Party got a resounding wake-up call from the voters of Massachusetts on Tuesday. But it's long been clear that 2010 would be a challenging election year for our party.
With few exceptions, the first off-year election in a new president's term has led to big gains for the minority party -- this was true for Harry Truman, Dwight Eisenhower, Ronald Reagan and Bill Clinton. After two election cycles in which Democrats won most of the close races and almost all of the big ones, Democrats have much more fragile turf to defend this year than usual. Add to that a historic economic crisis, stubborn unemployment and the pain that both have inflicted on millions of Americans, and you have a recipe for a white-knuckled ride for many of our candidates.
But not if Democrats do what the American people sent them to Washington to do.
In 2006 and 2008, voters sent an unmistakable message: We want decisive change. This was not just a change of political parties. Instead of a government that works for the entitled and special interests, a government that looks out for Wall Street, they wanted a government that works better for them, a government that plays the role it should to help foster the security of the middle class.
Many of last year's accomplishments are down payments on those principles.
We still have much to do before November, and time is running short. Every race has unique characteristics, but there are a few general things that Democrats can do to strengthen our hand.
-- Pass a meaningful health insurance reform package without delay. Americans' health and our nation's long-term fiscal health depend on it. I know that the short-term politics are bad. It's a good plan that's become a demonized caricature. But politically speaking, if we do not pass it, the GOP will continue attacking the plan as if we did anyway, and voters will have no ability to measure its upside. If we do pass it, dozens of protections and benefits take effect this year. Parents won't have to worry their children will be denied coverage just because they have a preexisting condition. Workers won't have to worry that their coverage will be dropped because they get sick. Seniors will feel relief from prescription costs. Only if the plan becomes law will the American people see that all the scary things Sarah Palin and others have predicted -- such as the so-called death panels -- were baseless. We own the bill and the health-care votes. We need to get some of the upside. (P.S.: Health care is a jobs creator.)
-- We need to show that we not just are focused on jobs but also create them. Even without a difficult fiscal situation, the government can have only so much direct impact on job creation, on top of the millions of jobs created by the president's early efforts to restart the economy. There are some terrific ideas that we can implement, from tax credits for small businesses to more incentives for green jobs, but full recovery will happen only when the private sector begins hiring in earnest. That's why Democrats must create a strong foundation for long-term growth by addressing health care, energy and education reform. We must also show real leadership by passing some politically difficult measures to help stabilize the economy in the short term. Voters are always smarter than they are given credit for. We need to make our case on the economy and jobs -- and yes, we can remind voters where Republican policies led us -- and if we do, without apology and with force, it will have impact.
-- Make sure voters understand what the American Recovery and Reinvestment Act did for the economy. Rarely does a congressional vote or issue lend itself to this kind of powerful localization. If GOP challengers want to run ads criticizing the recovery act as wasteful, Democratic candidates should lift up the police officers, teachers and construction workers in their state or district, those who are protecting our communities, teaching our children and repairing our roads thanks to the Democrats' leadership. Highlight the small-business owners who have kept their doors open through projects funded by the act.
The recovery act has been stigmatized. We need to paint the real picture, in human terms, of what it meant in 2010. In future elections, it will be clear to all that instead of another Great Depression, Democrats broke the back of the recession with not a single Republican vote in the House. In the long run, this will haunt Republicans, especially since they made the mess.
-- Don't accept any lectures on spending. The GOP took us from a $236 billion surplus when President Bush took office to a $1.3 trillion deficit, with unpaid-for tax cuts for the wealthy, two wars and the Medicare prescription drug program. Republicans' fiscal irresponsibility has never been matched in our country's history. We have potent talking points on health care, honest budgeting and cuts in previously sacrosanct programs. Republicans will try to win disingenuously by running as outsiders. We must make them own their record of disastrous economic policies, exploding deficits, and a failure to even attempt to solve our health care and energy challenges.
During the campaign, who will be whispering in Republican ears? Watching GOP leaders talking about health care the past few days, it was easy to imagine lobbyists and big health insurance executives leaning over their shoulders, urging death to health insurance reform. When it comes to cracking down on the banks and passing tough financial regulatory reform, GOP leaders will be dancing to the tune of Wall Street lobbyists and opposing tougher oversight, as if the financial crisis never happened. We need to lay it out plainly: If you put the GOP back in charge, lobbyists and huge corporate special interests will be back in the driver's seat. Workers and families will get run over, just like they did in the past decade.
-- "Change" is not just about policies. In 2006, Democrats promised to drain the swamp and won back Congress largely because the American people soured on corrupt Republican leadership. Many ethics reforms were put in place by the Democrats. But a recent Gallup poll showed that a record 55 percent of Americans think members of Congress have low ethics, up from only 21 percent in 2000. In particular, we have to make sure the freshman and sophomore members of the House who won in part on transparency and reform issues can show they are delivering. The Republicans will suggest they have changed their spots, but the GOP cannot hold a candle to us on reform issues. Let's make sure we own this space.
-- Run great campaigns. Many Democrats won congressional and statewide races in 2006 and 2008 with ideal conditions. Some races could have been won with mediocre campaigns. Not this year. Our campaigns can leave no stone unturned, from believing in the power of grass-roots volunteers and voter registration, to using technology and data innovatively, to raising money -- especially with big corporate interests now freed up to dump hundreds of millions of dollars to elect those who will do their bidding. Democratic candidates must do everything well. Each one must make sure that the first-time voters from 2008 living in your state or district -- more than 15 million nationwide -- are in their sights. Build a relationship with those voters, organize them and educate them. On Nov. 3, many races are sure to be decided by just a few thousand if not a few hundred votes. These voters can make the difference. We have to show them that their 2008 votes mattered, and passing health insurance reform is one way to start.
-- No bed-wetting. This will be a tough election for our party and for many Republican incumbents as well. Instead of fearing what may happen, let's prove that we have more than just the brains to govern -- that we have the guts to govern. Let's fight like hell, not because we want to preserve our status, but because we sincerely believe too many everyday Americans will continue to lose if Republicans and special interests win.
This country is at a crossroads. We are trying to boost the economy in the short term while also doing the long-term work on health care, energy, education and financial reform that will lay a strong foundation for decades to come. Let's remember why we won in 2008 and deliver on what we promised. If Democrats will show the country we can lead when it's hard, we may not have perfect election results, but November will be nothing like the nightmare that talking heads have forecast.
David Plouffe, campaign manager of Obama for America and Obama-Biden 2008, is the author of "Audacity to Win."
What do the 17 faces above have in common... besides being unattractive, old white men?
They're all conservatives, of course. All Republicans, except for one. Can you name him?
That would be George Wallace (fifth from left), elected Alabama governor four times, and three-time Democratic presidential candidate. It's important to note that once upon a time greedy corporatists had the Republican Party pretty much all to themselves, while the Democratic Party actually contained within its "big tent" the "social" conservatives, mostly from the south. Wallace was one of those. Of all the figures above, he is the only one to ever regret and recant much of the conservative bile he spewed during his active political seasons. It seems even the staunchest of conservative Democrats can at last admit they were wrong.
Republicans? As they will tell you themselves, they are never wrong. But aha, that's their mastery of wordsmithing, phrase-turning and disinformation at work... where the truth is actually the opposite of what they say it is. The sad reality is that they are always wrong. They count on you having a very short memory about that.
The 17 figures above are among the titans of the conservative movement over the past century. Look at those faces. What do you see, aside from a gaggle of sour pusses? Here are some terms that variously apply and describe: corrupt, incompetent, arrogant, elitist, bigot, liar, zealot, crook, bully, thief, uncaring, humorless, short-sighted, mean-spirited, staid, stodgy, ruthless, stubborn, boor, irrational, out-of-touch, coward, thug, disloyal, unethical, alcoholic, drug-abuser, ego-maniac, criminal, dangerous, fascist, traitor, evil.
In the 1960s and 70s those ultra-conservative Democratic politicians, and their true believers, realized they were becoming more and more out of sync with their party and its traditional quest for progress, equality and opportunity for all Americans. You see, conservatives never, ever really want progress, equality and opportunity for all Americans... only for their, particular chosen group: affluent, white males. So en masse they began moving to the Republican Party, which was comparatively untainted by the labor movement, blacks, Asians, Hispanics, scientists, teachers, artists, musicians, non-conformists, environmentalists, women, and other rabble. Today there are very few real conservatives left in the Democratic Party. Surely one of the most conservative Democrats of the modern era was Bill Clinton. As president, he gave the conservatives much of what they wanted, and still they hated him.
Yet even with the influx of millions of former conservative Democrats, the Republican party...particularly following Watergate...seemed in disarray and entirely out of touch with the nation's direction; rapidly evolving progress in the fields of education, arts and sciences, civil rights, women's rights, environmental concerns, workplace safety, industrial and coporate regulations, and more.
But then a strange combination of events turned things around for the conservatives. The tumultuous 60s, the Vietnam War, Watergate, the continuing and seemingly never-ending Cold War, a misfiring economy, the rapid expansion and politicizing of evangelical Christian sects, combined with uninspired leadership at all levels of government culminated in a national crisis of confidence in the mid and late '70s. Democrat Jimmy Carter, certainly one of the most decent human beings to occupy the White House, inherited this malaise, but was unable to turn it around on the basis of his administration's philosophies: honesty, openness, rationality, and long-term planning.
By 1980 the voters had grown impatient with Carter, and turned their hopes, dreams and trust over to a Hollywood B-movie actor. Ronald Reagan had not even taken office before he betrayed that trust. But he got away with it, and he would set the stage for a hostile takeover of American government by the nastiest, most ruthless political animals the nation has ever known: the conservatives.