The recent announcement from Sen. Rand Paul (R-Ky.) that he’ll be running for president and an expected similar announcement from former senator Jim Webb (D-Va.) suggest that we may actually see some discussion of criminal justice reform on the campaign trail soon — at least during the primaries. To that end, I’ve put together a quick and dirty list of questions I’d like to see some or all of the candidates answer. I realize there’s little to no chance this will happen. But they’re worth throwing out there, if for no other reason than to generate some discussion.
Feel free to add your own questions in the comments. I’ll pull out the good ones for a follow-up post.
— The Obama administration has made heavy use of the Justice Department’s Civil Rights Division to investigate patterns of abuse and civil rights violations by local police departments. Would you continue this policy in your administration? To what extent is the federal government obligated to step in when local police and prosecutors are either habitually violating or failing to protect the constitutional rights of citizens in their jurisdiction?
— President Obama recently formed a National Commission on Forensic Science to address the use of forensic analysis in the courtroom. This comes after a number of crime lab scandals across America in which analysts were caught fudging data, hiding unfavorable results, faking tests and in some cases just displaying general incompetence. It also comes after a 2009 National Academy of Sciences report, which found that in many forensic disciplines, analysts routinely give testimony in court that is unsupported by any scientific research. Currently, we have tasked judges with assessing the validity of scientific evidence. But judges are trained in law, not science. Do you agree that there are significant problems with forensic evidence? Do you think we should continue to ask judges to assess its validity? Would you support looking for an alternative system of distinguishing good science from bad before allowing it to be used in court?
— Attorney General Eric Holder recently announced changes to the Justice Department’s civil asset forfeiture policy. These changes put some restrictions on the ability of local police agencies to use the federal government to get around state laws aimed at curbing forfeiture abuses. But the changes come with loopholes, and the new policies will affect only a relatively small percentage of forfeiture cases. Do you believe that law enforcement agencies should be able to seize and keep property alleged to have been connected to criminal activity without ever charging or convicting the property’s owner? Should police agencies in states that have passed laws to restrict this practice be able to circumvent those laws by partnering with federal law enforcement agencies?
— It has long been the case that the Solicitor General’s Office represents the government, and defends the laws of the land. On issues like police and prosecutorial misconduct, and even state and local laws, the solicitor general’s office nearly always defends the government (although it sometimes sits a case out). But there is no law mandating this. The solicitor general after all works for the people, and answers to the president. There’s no compelling reason why a president should instruct some of the country’s smartest legal minds, who work at his discretion, to defend laws he believes are unconstitutional. Would your solicitor general continue this tradition of reflexively defending all laws and government officials, even if you believe the laws are unconstitutional, or that the government officials are at fault in the case in question?
— In a similar vein, would you enforce laws on the books that you believe are unconstitutional? Technically speaking, as chief law enforcement officer of the land, you’d be legally obligated to enforce laws on the books that the courts have upheld. But the federal government hasn’t nearly enough resources to enforce all laws all the time. What laws or areas of federal criminal law would you prioritize? What laws would you instruct the Justice Department to ignore, or assign a low priority?
— Are there any current federal laws that you believe are unconstitutional?
— If you could add one amendment to the Constitution, what would it be?
— Several media reports, advocacy groups and judicial opinions (including a recent opinion by Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit) have described an epidemic of prosecutor misconduct across the country. Do you believe there is a widespread problem of prosecutor misconduct in America? Do you believe the federal government has a responsibility to address it?
— Currently, allegations of prosecutorial misconduct are investigated by the Justice Department’s Office of Professional Responsibility. But the filing, status, and results of those investigations are kept secret, not only from the public, but from the DOJ’s Office of the Inspector General. Do you think this policy is appropriate? Would you be willing to open the OPR to investigation by the IG’s office? Would you open it to FOIA requests?
— Currently, federal law tasks the U.S. attorney with collecting and reporting data on shootings by police officers across the country. That has never really happened since the 1994 law requiring it. Would you instruct your attorney general to begin keeping a tally of officer-involved shootings? Would you require local police agencies to report this data, perhaps by threatening to withhold federal funding?
— Do you believe the criminal justice system is infected with institutional racism? I’m not asking you to assess whether individual cops, judges, or prosecutors are racist; I’m asking if you believe there is inherent bias built into the system.
— Last December, Ed Krayewski at Reason magazine proposed creating a “police offenders registry.” This would be a master list of police officers who have been caught lying in police reports or on the witness stand, using excessive force, or abusing or intimidating citizens. The idea here is to prevent corrupt and abusive cops from simply picking up and moving to another police department. There of course would be some details to work out about what would qualify an officer for listing on the registry, but generally speaking, do you support this idea? Is it something you would consider asking your Justice Department to create and oversee?
— Since the Ferguson protests, there has quite a bit of discussion of the Pentagon’s 1033 Program, which allows military equipment designed for use on a battlefield to be transferred to local police departments for use on American streets. (It authorizes the transfer of more innocuous equipment as well.) This has raised concerns about police militarization, as well as more practical concerns about the lack of training that comes with the gear, and about gear that has been reported missing or stolen. Do you support the 1033 Program in its current form? Would you abolish it? Would you make changes to it? If so, what changes?
— Similarly, the Department of Homeland Security has been handing out grants to local police departments to purchase military-grade equipment such as armored personnel carriers. These grants are ostensibly to protect against terrorism, but grants are handed out without much assessment of the probability of terrorism, and the equipment inevitably is then used in more routine policing. Do you support these grants? Would you end them? Modify them? Leave them unchanged?
— There are currently thousands and thousands of federal laws. In fact, there are so many federal laws that a number of efforts to count them came up with only rough estimates. This is because in addition to the sheer volume of laws, some laws are so vaguely written that it’s difficult to determine what they do and don’t allow. Other laws are repeated throughout the United States Code. Regulatory laws are also now increasingly enforced as criminal violations. U.S. citizens are expected to know and follow all of these laws, upon punishment of fines or incarceration, even though some regulators and law enforcement officials whose job it is to enforce these laws don’t always know them all, and even though some legal commentators have noted that it is impossible to follow some laws without violating others. Do you agree that there are too many federal laws? Should citizens who want to, say, run a small business, or support a political cause, be required to hire an expensive attorney simply to avoid breaking the law? If you agree that these are problems, what would you do to change them?
— A number of commentators have noted with alarm the increasing arming of the regulatory state. The Department of Education, Small Business Administration, Department of Health and Human Services, Department of Labor, and Department of Commerce, among others, now all have armed law enforcement personnel. Many also have “high-risk warrant teams” that use SWAT-style tactics to serve search warrants on people suspected of nonviolent, white collar crimes and what were once regulatory offenses . Do you find this trend troubling? If so, what would you do to change it?
— We now know that the FBI and other federal law enforcement agencies have been giving “Stingray” technology to local police departments across the country. Generally speaking, these devices intercept and interfere with cell phones. But because the technology is classified, we don’t know exactly what the devices do, and whether their method of collecting data is consistent with the Fourth Amendment. Federal law enforcement officials have then told local police to keep silent about when and how they’re using the technology, to the point of asking them to sign nondisclosure agreements, and even instructing them to lie to judges and prosecutors. But we now know that the technology has routinely been used in investigations that have nothing to do with national security (mostly drug cases). Does this seem fair or just to you? Would you change these policies?
— The last three presidents have made some variation of a promise to run the most transparent administration in history. By any objective measure, all three have failed. What, if anything, would you do differently?
— Do you believe the TSA’s pre-flight procedures at airports protect us from terrorism? Is there anything you would change about the agency?
— What do you believe is the primary function of prisons — to punish people for doing bad things, to isolate dangerous people from society, or to rehabilitate criminals so they can reenter society as productive citizens? What do you believe our prisons primarily do today?
— Should people convicted of nonviolent felonies be permitted to vote once they’ve served out their sentences?
— One sign of moral leadership is a willingness to do the right thing even if it is politically unpopular. According to U.S. Sentencing Surveys of federal judges, federal judges by a wide margin believes the federal sentencing guidelines for one crime is more disproportionate and unfair than any other. That crime is possession of child pornography. Would you support an effort to pass more reasonable sentences for this crime?
— Justice Antonin Scalia has written that so long as the defendant was afforded due process, a government execution of innocent person would not be a violation of that person’s constitutional rights. Do you agree?
— How would you treat government whistleblowers? Would you prosecute anyone who releases classified information to the press, regardless of whether or not they expose waste or abuse? If your answer is no, what would be your criteria in determining whether or not to prosecute?
— The Obama administration has waged an unprecedented war on people who leak classified information that is unfavorable to the government. Is there anyone the Obama administration has prosecuted whom you would have excused? Is there anyone they have excused whom you would have prosecuted?
— Edward Snowden has been called a hero, a whistleblower, a careless leaker, a civil liberties crusader, an idealist, a criminal, a spy and a traitor — among other things. What do you think of him? Would you consider pardoning him? Would your administration aggressively pursue him and prosecute him? Do you think he exposed real wrongdoing by the federal government? Do you think the American people had a right to know about the surveillance policies he exposed?
— Which amendment in the Bill of Rights do you think is most important, and why?
— If after taking office you discovered law breaking and abuse committed by your predecessor and/or his immediate subordinates, would you investigate and, if necessary, prosecute? How serious would the transgressions need to be in order for you to pursue them?
— Do you think an atheist or agnostic could make a good president? Could you vote for one?
— Do you believe that Colorado and Washington state are in violation of federal law by legalizing recreational marijuana? Would you attempt to enforce the federal marijuana laws in those states? What if other states follow suit? What if other states begin to legalize other illicit drugs?
— Do you believe America’s police forces are overly militarized? If so, and you could change some federal policies to stop or slow that tend, would you do so?
— The last three presidents have been historically stingy with the pardon and clemency power. The power today is mostly used to confer mercy and redemption on people who have already served their time. But it was originally intended as a last check to prevent any injustices that may have slipped through the system. What approach would you take to granting pardons and commutations? Do you think the last two administrations were too generous, too frugal, or just about right?
— Is there any type of speech that you believe should be prohibited by the government?
— We haven’t had a justice on the Supreme Court with any real criminal defense experience for nearly a quarter century. We currently only have one with any day-to-day criminal law experience at all. Given that the Supreme Court routinely issues rulings with profound implications on the powers of police and prosecutors and the civil rights of suspects, some commentators are troubled by the lack of criminal law experience on the court, and in particular the lack of any experience from the perspective of criminal suspects. Do you agree? Could you see yourself nominating a justice with significant criminal defense experience?
— Do you believe an innocent person has been executed since the United State reinstated the death penalty in 1976? If so, do you believe this is an indictment of the death penalty, or that the benefits of capital punishment outweigh this risk?
— If Kitty Dukakis had been raped and murdered in the late 1980s, but we recently learned that the state of Massachusetts executed an innocent man for that crime, would that change how you feel about the death penalty?