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Another Attempt to Criminalize Politically Incorrect Speech

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Back in June I discussed Sen. Sheldon Whitehouse’s disturbing suggestion that energy companies that raise doubts about the Administration’s response to climate change should be prosecuted under federal racketeering law. At the time it seemed like a farfetched proposal and a clear violation of the Constitutionally protected right to freedom of speech. Nevertheless, as Walter Olson reported yesterday at the Cato Institute’s blog, a number of people who ought to know better seem to like the idea:     

"Letter To President Obama: Investigate Deniers Under RICO" is the headline over a letter from twenty scientists, most at respected institutions, endorsing the Whitehouse idea and calling for the federal government to launch a probe under the racketeering (RICO) law. The letter was soon being widely promoted around the web….

It is not clear that all the scientists who signed the letter have thought carefully about the tension between what they are asking and the continuing freedom to pursue lines of inquiry in public debate that the government may find unwelcome or unreasonable.  "I have no idea how it affects the First Amendment" says one Vermont scientist who backs the probe….

It is remarkable how many advocates of this scheme seem to imagine that the First Amendment protects only truthful speech and thus (they think) has no application here because climate skepticism is false.

That’s not the way it works…. In practice an "only truth has rights" approach chills advocacy generally and gives the state (or sometimes private litigants and complainants) a dangerous power to stifle advocacy in debates that it considers settled.

It is certainly strange to see many supporters of the Whitehouse approach suggest that the speech they dislike is actionable because they find in it half-truths, selectively marshaled data, scientific studies that spring from agendas, arguments whose ultimate sincerity is open to question, evasion of telling points made by the other side, and so forth. Those are the common currency of everyday debate in Washington (and not just in Washington). Nothing could be more common than to find both sides in an argument using these argumentative techniques. Hawks and doves do it; protectionists and free traders; labor interests and business interests. The same techniques are also accepted as standard currency within the adversary process itself, in which the law takes such pride, which makes it particularly absurd to propose defining it as unlawful racketeering.

Why Are So Many Americans in Prison?

The US has, by far, the highest incarceration rate in the world. At 698 per 100,000, our rate is many times as high as in other developed countries (In Canada the rate is 106 per 100,000.), and it is significantly higher than in most undeveloped countries as well. Many facile explanations have been have been offered for this anomaly–the war on drugs, harsh sentencing guidelines, a conspiracy by white racists–but, in a recent interview published by Slate, Fordham Law Professor John Pfaff explains why such explanations cannot be the whole story:

It’s true that legislators have passed a lot of new, tougher sentencing laws over the past 30 or 40 years. And it’s true that we have increased the attention paid to drugs. But in the end, there are other things that play a much, much bigger role in explaining prison growth. The fact of the matter is in today’s state prisons, which hold about 90 percent of all of our prisoners, only 17 percent of the inmates are there primarily for drug charges. And about two-thirds are there for either property or violent crimes….

If you actually look at time served by inmates in prison, it doesn’t appear to have changed that much. We have good data going back approximately 20 years or so, and at least in northern and northwestern states where we have better data, about half of all prisoners who get admitted in a given year only spend about two or three years in prison. And only about 10 percent serve more than about seven or eight years in prison. These laws look incredibly punitive–25 years for a class B felony–but you just don’t see people serving that amount of time.

Phaff goes on to suggest that other factors were actually more important, factors that changed over time:

You need to break the question into two periods. Because there’s a time between 1975 and 1991 when you see this dramatic rise in crime, and the prison population went up as well. And then there’s a more interesting period, between 1991 and 2010, when crime steadily declined, yet prison populations kept going up.

Regarding the first time period, he says:

Between ’75 and ’91, it’s almost certain that the increase in crime had to play at least some significant role in increasing the prison population. The scale of the crime boom that took place was dramatic: From 1960 to 1991, violent crime rose by 400 percent, and property crime rose by 200 percent. Figuring out how much of prison growth can be attributed to the crime boom is actually statistically quite difficult, but the best estimate that’s out there–which is not a perfect estimate, but it’s the best we have–suggests that about half of prison growth during that period was due to rising crime. Clearly other stuff mattered, but rising crime played a very big role during the first phase.

Whereas in the later period:

What appears to happen during this time…is that the probability that a district attorney files a felony charge against an arrestee goes from about 1 in 3, to 2 in 3. So over the course of the ’90s and 2000s, district attorneys just got much more aggressive in how they filed charges. Defendants who they would not have filed felony charges against before, they now are charging with felonies. I can’t tell you why they’re doing that. No one’s really got an answer to that yet. But it does seem that the number of felony cases filed shoots up very strongly, even as the number of arrests goes down.

Pfaff also explains why it’s important to focus on the real causes of over-incarceration and why, even if we do so, solving the problem may be tricky:

The reason it’s important to get it right is that if we’re trying to reduce the prison population, we want to make sure we do it correctly–and if you focus on the wrong thing, you won’t solve the problem. So if you think it’s the war on drugs, you might think, ‘OK, if we just decriminalize drugs, that will solve the problem.’ And, you know, it’s true that if we shift away from punishment to treatment that could be a huge improvement. But just letting people out of prison–decarcerating drug offenders–will not reduce the prison population by as much as people think. If you released every person in prison on a drug charge today, our state prison population would drop from about 1.5 million to 1.2 million. So we’d still be the world’s largest incarcerating country; we’d still have an enormous prison population.

And if we focused on cutting back sentence lengths, maybe that would weaken DAs’ bargaining power at plea bargaining, but since people aren’t serving the massively long sentences anyway, it probably won’t have that big an effect on prison population either….

The real growth in the prison population comes from county-level district attorneys sending violent people to prison. And there’s a lot to be said for nonprison approaches to a lot of people who are in prison for violent crimes. But that’s a political issue that we haven’t even begun to address, in part because it’s politically scary….

What makes it very hard is that the person we really need to target now–whose behavior we need to regulate–is the district attorney, and the district attorney is a very politically independent figure. He’s directly elected, and he’s directly elected at the county level. So there’s no big centralized fix. You can’t necessarily go to Washington and say, ‘Here’s the law that’s going to control what the DAs do,’ because they don’t have to listen to the federal government at all. So you have to figure out how to go county by county and either elect DAs who have less punitive attitudes, or you can try to sort of change the incentives DAs face at the state level. But it’s very tricky.

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Jon Guze is Senior Fellow in Legal Studies at the John Locke Foundation. Before joining the John Locke Foundation, Jon practiced law in Durham, North Carolina for over 20 years. He received a J.D., with honors, from Duke Law School… ...

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