Prosecutor in Chief: Executive power and the politics of fear

As Adam Liptak documents in his "Side Bar" column in today's NYT (requires Times Select), the Bush administration used the Patriot Act to advance its broader agenda of giving executive officials more and more control over the operation of the criminal justice system. The particular case in point is a little discussed provision that allows the Attorney General, rather than the courts, to certify that states provide adequate defense support to death row prisoners to qualify for "fast track" status in terms of the sequencing of appeals. The whole concept of "fast tracking" death row appeals has been a pernicious goal of both Congress and the Executive branch since the 1990s, and has been pursued vigorously by both Democrats and Republicans. This enthusiasm to speed up execution has been hardly diminished by repeated exposures of wrongful convictions, including on death row, and lots of evidence that these miscarriages of justice are often discovered late and through repeated review by courts.

But as bad as the fast-track provisions produced in the 1990s were, they at least let courts, the branch least likely to be pressured by the politics of crime fear (although hardly immune) to decide whether states were really doing enough to warrant such a speed up in the sequence of appeals. Indeed, until now no state has been found to warrant fast track status (although it hardly matters in places like Texas and Virginia where the federal courts have long abandoned any effort to protect the innocent or vindicate constitutional rights of defendants).

In moving the power to decide on fast-track status to the Attorney General the Bush administration turned to the figure most likely to be politically responsive to crime fear and to calls for speedier executions. As I document in chapter 2 of my book, Governing through Crime, the war on crime has led to a steady shift of power both toward the executive branch and toward the most crime fighting oriented figures in the executive branch. No figure better exemplifies this model of the crime fighting executive then modern Attorney Generals of both parties. From Robert Kennedy through Ed Meese, Janet Reno and more recently John Ashcroft and Alberto Gonzalez, most Attorney Generals have adopted the stance of national prosecutor and embraced both tough on crime policies and a crime centered vision of the justice system. As in some many areas of government, the Bush administration's response to 9/11 wasn't an innovative leap into a new model of governance; rather it was an opportunistic effort to extend the major features of governing through crime, beyond all remaining restraints, through the deft exploitation of the publics' justifiable fear of terrorism.