Presidential Campaign Rhetoric And Criminal Justice

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chainlink-690503_640Judges are not supposed to engage in partisan politics; so I won’t, although I am tempted to take the muzzle off so that I may resume my rights under the First Amendment to free speech. What is most disturbing to me as a local criminal court village justice is the lack of substance being presented by candidates. To me it shows a lack of life experience and therefore, empathy for all in the justice system. Those who speak of getting “tougher” or tout themselves as “law and order” candidates, really need to take a careful look at our history.

Nixon was a “law and order” candidate who was impeached for committing “high crimes and misdemeanors.” Half of his administration went to jail and they sought a Congressional repeal of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966). Nelson Rockefeller brought us his infamous Rockefeller Drug Laws, which then caused “mass incarceration” and Ronald Reagan was another “law and order” candidate who brought us the Federal Sentencing Guidelines which, until challenged in U.S. v. Booker (04-104) and U.S. v. Fanfan, supra, (04-105), 543 U.S. 220, 125 S.Ct. 738 (2005), removed the power of sentencing from federal judges and gave it to prosecutors. Fifteen years later the Supreme Court held in Booker and Fanfan that the guidelines were not mandatory. This writer and the National Association of Criminal Defense Lawyers (NACDL) were amicus curiae counsel (friends of the court) in the Supreme Court, bringing about a much needed change in our sentencing laws but up until then, there had been a huge increase in our federal prisons and the number of prisoners coming into them.

Thanks to a “law and order Congress” in the 1990s, we have mandatory minimum sentencing which ignores rehabilitation; those who may earn their way back into society and alternative sentencing programs such as drug, alcohol and community service that are more successful at curtailing recidivism than jails and cost half as much.

Governor Pataki was another “law and order” politician who brought us the death penalty later declared unconstitutional by our Court of Appeals. Death penalty cases cost more than $10 million to prosecute. We had six prisoners on death row. None were put to death and none will be.

Unfortunately we cannot join in the debates. What is clear is that we need national and statewide commissions to review and report on the many changes needed in our criminal justice system. These are monumental changes such as the revamping of our grand jury system to take exclusive control of it away from the prosecutors and implementing re-sentencing laws together with expungement statutes. These commissions would address the racial strife that we are experiencing throughout the country while at the same time preserve the Constitutional rights upon which our nation was founded.

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Thomas F. Liotti is an attorney in Garden City and Village Justice in Westbury. He is also an adjunct professor of litigation in the legal studies department at Nassau Community College.

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