May 2, 2011


Lord David James George Hennessy Windlesham, Politics, Punishment, and Populism (Studies in Crime and Public Policy) (New York & Oxford: Oxford U.Press, 1998) ("For the politician in a representative democracy, populism is a slippery concept. The aspirant to public office knows that electoral success is a prerequisite for the exercise of influence and power and that in order t gain more votes than rival candidates it is imperative to ascertain the opinions of the voters, and then to satisfy them. Elected politicians everywhere are keenly aware of the need to keep their ears close to the ground. The skill lies in interpreting the signals that are picked up, some loud but irregular, others fainter but more consistent, and the uses to which they are to then put. Once elected to the representative assembly, the successful political candidate becomes a legislator, a more dignified status, with a voice and a vote in reaching decisions on policies and making laws. It takes some newly elected representatives longer than other to realize that the function of any legislative assembly worth the name is not simply to transmit undiluted the outpourings of raw public opinion but, in the felicitous language of James Madison, 'to refine and enlarge the public view, by passing them through the medium of a chosen body of citizens, . . . .' " "In the closing years of the twentieth century, neopopulist forces have been in the ascendant in American politics, whether at the national, state, or local level. The panorama is vast, but the outlines are familiar. In the foreground is a large black cloud of discontent, shutting off the sum from the nourishing sense of well-being that it might be expected would be enjoyed by the citizenry of the most economically prosperous nation on earth, and one with a long, if not altogether untarnished, tradition of individual freedom. As it has developed in modern times, neopopulism has taken on many negative characteristics. There is a consciousness of remoteness and resentment at being powerless and detached from the decision-making process. Frustration and resentment lead to suspicion of those closer to the seats of power, especially anonymous nonelected officials or experts, and an attraction toward simplistic solutions to complex problems. In the early stages attitudes may not have hardened into opinions on particular issues. But the soil is fertile, and slender shoots, cultivated by rhetoric, can grow rapidly and branch out into unexpected directions." Id. at 3-4. Neopopulism, with it dark traits of detachment, resentment, consciousness of remoteness, suspicion--if not outright paranoia--, and simplistic thinking, is running wild in early twenty-first-century America. "The powerful imagery of the incorrigible criminal committing further violent offenses soon after being released into the community, having served only a fraction of the sentence imposed for his previous crimes, inspired the Armed Career Criminal Act of 1984. If a person was caught in possession of a firearm and had three prior convictions for robbery or burglary or both, the minimum sentence would be enhanced form ten years to not less than fifteen years' imprisonment up to a maximum of life without eligibility for parole The qualifying offenses were widened by the next Congress to include any violent felony or serious drug offense, Although the legislation may have fulfilled for a time its political purpose of reassuring the public that Congress wanted to see violent offenders incarcerated until they were no longer dangerous, unforeseen difficulties soon emerged. The definition of what constituted the qualifying prior conviction and the grounds for challenging them in court were not settled until cases decided by the Supreme Court several years later." "Once in operation, the Armed Career Criminal Act was open to criticism as being overinclusive, creating unwarranted prosecutorial discretion, and failing to target actual career criminal since multiple offenses committed in a single day might establish a 'career' for the purposes of the statute. Oveinclusiveness was seen in the lack of any requirement of recency in prior conviction; the separate counting of related cases; the range of comparatively minor crimed included as predicate offenses; and the absence of serious misconduct to trigger the statute's application. These flaws were a good example of the consequence of adopting stratagems with insufficient regard to their policy implications in order to achieve popularly accepted aims." Id. at 25-26.).