Osler's Razor

At the caucus last night, I ran into some of my friends and neighbors who were there supporting Hillary Clinton. They asked why I wasn't supporting her, too, and I gave them the honest answer-- that her opposition to making retroactive recent reforms of the 100:1 Powder/crack cocaine ratio in federal sentencing was a stopper for me. Obviously, as made clear by their reaction, this is not a high-profile issue in the election.

Of course, neither is criminal law generally. You hear almost nothing about those issues, despite the fact that polls consistently show crime as a concern to citizens. It's easy to figure out why-- no one wants to risk the accusation of being "soft on crime," or dealing with those complex issues.

Still, I'm going to take a shot at ranking the candidates on criminal law issues. Naturally, this ranking is from my own perspective as a former federal prosecutor who sees the need for some reform of the system.

Issue One: Sentencing Reform

The current administration has taken almost no role in the sentencing reforms that have taken place under its watch. Notably, neither has Congress; those reforms have been wrought by the Supreme Court in Booker and Kimbrough and (to a lesser degree) by the Sentencing Commission. I would expect Obama to be most vigorous in engaging the process of reform, and he is the candidate who has most often articulated this need. Surprisingly, perhaps, I think Clinton is the candidate least likely to embrace reform. The previous Clinton administration pursued conservatives in part by maintaining a hard line on sentencing issues.

Here is my ranking:

1) Obama
2) McCain
3) Clinton

Issue Two: Judicial Appointments

McCain is the only candidate who is not a lawyer and he does not seem particularly interested in this area, so the party apparatus will probably have sway. That means lots of judges from civil practice with a strong interest in social issues, without much criminal expertise.

On the other hand, Clinton is close friends with many of the judges who are most prominent on criminal issues, such as Nancy Gertner in Boston. Because many sitting district court judges up for promotion were appointed by her husband, she is probably in the best position to appoint judges knowledgeable and interested in criminal law. Obama does not have that background, and it is hard to guess how he would pick judges.

1) Clinton
2) Obama
3) McCain

Thus, Obama would be best at running the DOJ with an eye to reform and highlighting these issues with Congress, while Clinton would be more likely to appoint judges interested in sentencing policy. Because I think policy should be made by Congress and the administration rather than the courts, overall I would favor Obama for the task of making criminal law an active part of the national debate.