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October 3, 2004 - CounterPunch Magazine (US)

Two Empty Bottles with Different Labels

John Kerry on Criminal Justice Issues

By Paul Wright, Prison Legal News

Return to Drug War News: Don't Miss Archive

"Americans on the frontlines - our first responders, military forces, sheriffs, policemen, firefighters, and civil defense volunteers - must have the very best equipment, training and support possible. Our safety and freedom are the envy of the world and John Kerry and John Edwards will ensure this does not change. A Kerry-Edwards administration will recruit more law enforcement and emergency professionals, combat Meth labs and drug abuse, and build a stronger judicial and prison system in rural areas."-John Kerry for President Website,

The issue of felon disenfranchisement, where millions of Americans convicted of crimes that may or may not have resulted in imprisonment cannot vote in government elections, is one of growing importance. Around the country various lawsuits are challenging such laws under various theories, so far with mixed results. Some political pressure, especially by the black community is raising awareness about how this results in dilution of the black vote and undermines any notion of equality and democracy. In a system that claims to be a democracy the right to vote should be a fundamental right. But the flip side of the same coin is that people who wish to vote should have candidates who either represent their interests or their views on given issues. That a majority of the electorate that can vote chooses not to may reflect recognition of Jim Hightower's comment that "If the gods wanted us to vote, they would send us candidates."

One reason for close national and statewide races for federal offices is the lack of any discernable differences among the candidates. For people who are concerned about criminal justice issues the lack of any substantial policy differences among national candidates is most easily seen by the fact that today no national political figure is publicly opposed to the death penalty. For prisoners or families who have loved ones in prison, people who do not support a police state, the death penalty and the evisceration of human and civil rights the electoral choices between John Kerry and George Bush amount to choosing to be beat to death with a stick or a two by four.

In 1992 I wrote an article in Prison Legal News about Bill Clinton interrupting his presidential campaign to fly back to Arkansas to preside over the execution of Ricky Ray Rector, a mentally ill black prisoner who had blown most of his brains out in a botched suicide attempt after killing a police man. While George Bush I was certainly a supporter of the death penalty, he had not had the opportunity to oversee one to prove his support of it to the electorate. Clinton could and did. I predicted that based on his campaign promises and track record as governor of Arkansas, Clinton would be a disaster for prisoners and he was. However, I didn't think he would be as bad as he turned out to be.

President George Bush II's record on criminal justice issues needs little elaboration. As governor of Texas he oversaw over 150 executions, his predecessor Ann Richards began the massive expansion of the Texas prison system, which Bush completed, and much more. As president Bush has presided over the concentration camp at Guantanamo Bay, the rape and torture chambers of Abu Gharaib, signed the PATRIOT Act into law and otherwise done what American presidents historically do. But presidents do not act alone, they need legislative approval for these things and John Kerry has been in the U.S. senate for almost 20 years. Plenty of time to amass a track record on criminal justice issues. Moreover, it is not as if Kerry has questioned or condemned Bush on these human rights issues.

The Bush campaign has attempted to label Kerry as being "soft on crime", just as Bush's last opponent for Texas governor, Texas attorney general Dan Morales (who has since been imprisoned himself on fraud charges), claimed Bush was "soft on crime." However, a review of Kerry's actual voting record and personal history reveals a consistent track record of supporting the death penalty, mass imprisonment, harsher sentences, limited civil rights and more importantly, the commitment and ability to both pull the trigger and prosecute the cases himself.

In researching this article I called a prisoner rights lawyer in Boston to ask about Kerry's record on prisoner rights issues. He sighed and said "I don't know the specifics, but I'm sure it's abysmal."

In 1986 Kerry voted for H.R. 5484, which enacted the federal mandatory minimums for drug crimes, this included the infamous 100-1 crack cocaine disparity where defendants with five grams of crack received a mandatory minimum of five years in federal prison while possession of five hundred grams of powdered cocaine resulted in the same five year mandatory minimum sentence. It would have been surprising if Kerry had voted against this draconian law since it had been introduced in the House of Representatives by then Speaker of the House Tip O'Neil, Kerry's fellow Democrat from Boston.

Some people in the anti death penalty movement appear to believe that Kerry is opposed to the death penalty. If he is, it does not prevent him for voting for its expansion every opportunity he gets. The same 1986 law mentioned above reinstated the federal death penalty for so called "drug kingpins." In 1994 Kerry voted for the massive 1994 crime bill that Clinton had called for. As I wrote at the time [PLN, Dec. 1994], this bill expanded the federal death penalty to dozens of new offenses, including the killing of federal poultry inspectors, created new crimes, funded 100,000 police, enacted the federal "three strikes" law, gave the states billions of dollars to build new prisons, limited the power of federal courts to rule on prisoner crowding suits, eliminated Pell grants for prisoners to receive an education and significantly changed the rules of evidence against criminal defendants and resulted in a massive expansion of police power. Kerry's running mate, John Edwards, has also been a strong supporter of the death penalty.

In 1996 Kerry voted in favor of the Anti Terrorism and Effective Death Penalty Act (AEDPA) which gutted what remained of federal habeas corpus law as well as expanding the deportation of aliens who had been convicted of a crime. The Prison Litigation Reform Act was passed that same year but it was enacted as a rider to the budget and thus no separate voting record is available.

Kerry voted in favor of the PATRIOT Act in 2001 which was a Department of Justice wish list that had been around for a number of years, essentially a continuation of the 1994 crime bill and AEDPA.

As noted above, on his website Kerry is calling for more rural prisons, which America needs as much as it needs a typhoid epidemic. When Kerry says that America's freedom is the envy of the world I don't recall hearing people in other countries wish that they had over two million prisoners. While Kerry may be proud of the fact that with 5 % of the world's population, the US has 25% of the world's prisoners, few countries seem envious enough to lock up that portion of their citizenry.

Kerry served as a prosecutor for several years in Massachusetts before running for elected office. Recently his four months of service in Viet Nam as a commander of a Swift patrol boat has come under attack over whether or not he exaggerated his combat experience, and that he was wounded four times in incidents that never required hospitalization or medical treatment. The more significant aspects of his undisputed actions in Viet Nam have been glossed over. Namely that many of the Special Forces and CIA commandos Kerry's boat transported along Vietnamese rivers were carrying out assorted war crimes, including the torture and murder of captured civilians and POWs, some of which occurred on Kerry's boat or in his presence. Then Kerry boasts of killing a wounded National Liberation Front guerrilla who was retreating. These exploits were laid out in detail in the December, 2003, issue of the Atlantic Monthly in an article by Douglas Brinkley, Tour of Duty, a sympathetic hagiography excerpted from the book of the same title. Rather than running for president a case can be made that Kerry should be indicted for war crimes.

Both Kerry and Bush II are from wealthy families and have similar educations and even memberships in the same Skull and Bones secret society at Yale. I guess that is why it is called a ruling class. On any substantial policy issue it is difficult to find any difference between the two candidates. Asked by the New York Times how his policies would differ from the current regime's, Kerry replied they would differ in style but not substance. On criminal justice issues neither candidate for the Democratic or Republican parties offers voters any significant choice beyond being beaten to death with the stick or the two by four. Both have reprehensible records on this topic. However, unlike Bush II whose personal organizational capabilities seem to max out at organizing a keg party, Kerry has shown an ability and willingness to kill and prosecute people himself.

If Kerry has any principles or actually believes in anything beyond political expediency his supporters have yet to point out what those may be. In his two decades in the Senate he has consistently voted against the interests of prisoners and criminal defendants and in support of state power and repression. It is unreasonable to expect that if elected president he would be any different. No one in Kerry's campaign office would return my calls seeking comment on his positions on these issues.

Both vice president Dick Cheney and President Bush have been convicted of drunk driving, twice each. They employ at least one convicted felon, Elliot Abrams, in the white house, and won't tell reporters how many other felons they employ. President Bush won't answer any questions about his drug use in the past, apparently believing the electorate has no business knowing if he violated the nation's felony laws against drug use and possession. Of course, if he has not violated such laws, one would think a simple denial would suffice. Yet they condemn Kerry as being soft on crime when he is anything but.

Bush's policies engender opposition and there is some awareness that he is little more than a bag man for corporate interests. Under Clinton not only were the rights of prisoners set back decades, there was no resistance to it. When Reagan and Bush I attempted to gut habeas corpus, there was opposition and the attempts failed. When Clinton tried, there was no opposition and it succeeded. The same thing occurred with regards to "welfare reform." It is likely that a Kerry presidency would see a similar phenomenon.

Some members of the "anybody but Bush" camp argue that Kerry should be supported at any cost but that lowers the bar for all candidates. The most common argument is that at least Kerry supports abortion rights for women. However, Kerry states he is personally opposed to abortion and would not impose an abortion litmus test on any judicial appointments he makes. This argument also implicitly assumes that the more than 2 million victims of mass incarceration in this country, almost all of whom are poor and who are disproportionately black and Hispanic and mostly men, are expendable and of no consequence, politically or morally. That their liberty, human rights and families mean nothing and are political fodder to be trashed for political gain. Poor, disenfranchised and with no voice anyone in power seems compelled to listen to, prisoners and criminal justice reformers have little choice in the presidential race of 2004. Two empty bottles with different labels indeed. Take your pick.

Paul Wright is a human rights advocate and the founder and editor of Prison Legal News, an independent monthly magazine which reports on criminal justice issues. He is also co-author of The Celling of America: An Inside Look at the US Prison Industry (Common Courage, 1998) and Prison Nation: The Warehousing of America's Poor (Routledge, 2003).

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