Where Is the Real Ed Meese, and Why Are You Wearing His Clothes?


I'm quoted in an article in today's New York Times about new left-right-libertarian alliances on criminal justice issues. The article itself does a good job of laying out the emerging interest on the right in excessive police and prosecutorial powers.

I was particularly struck, however, by comments from former Regan administration Attorney General and longtime law-and-order man Ed Meese, who gives the appearance of having come full circle on some of these issues. Meese is a fellow at the Heritage Foundation, and I've recently defended Heritage's Overcriminalization project. If Meese had had a late in life epiphany on the proper balance police and prosecutor powers and the rights of the accused, I'm happy to hear it. But this is just inaccurate:

Mr. Meese said the "liberal ideas of extending the power of the state" were to blame for an out-of-control criminal justice system. "Our tradition has always been," he said, "to construe criminal laws narrowly to protect people from the power of the state."

Both left and right have contributed to the over-criminalization problem, and we can blame both major parties for the massive police powers given up to government in the drug war over the last 30 years.  But Meese is being disingenuous here. This is the same Ed Meese who popularized the phrase "zero tolerance." It's the same Ed Meese who once called the ACLU a "criminals' lobby," and who once said…

"…you don't have many suspects who are innocent of a crime. That's contradictory. If a person is innocent of a crime, then he is not a suspect."

In fact, browsing the index of Smoke and Mirrors, Dan Baum's excellent history of the drug war, during his time as Attorney General, Meese pushed for, among other policies….

• Expansion of federal asset forfeiture laws, including giving police the ability to seize before an indictment, and "substitute assets" provisions.

• More power to hold suspects without bail.

• Repeal of the Miranda requirement and the Exclusionary Rule.

• The power to issue administrative subpoenas to require defense attorneys to snitch on their clients.

• The federal reporting requirement on cash transactions over $10,000.

• Stripping drug suspects of all their assets so they can't afford to hire a defense attorney.

If Meese has come around on these issues, good on him. But he's hardly blameless in the story of how police and prosecutors—particularly federal prosecutors—wield the powers they do today. More recently, Meese also championed the nominations of both John Roberts and Samuel Alito to the Supreme Court, easily the two most pro-government justices on the bench when it comes to criminal justice issues—and both were known as such at the time of their respective nominations.

Meese could actually have an impact if he's had a genuine road to Damascus moment. But that would require him to acknowledge and atone for his own contribution to the over-criminalization problem. Trying to whitewash his own history and time at DOJ by blaming where we are today on "liberal ideas" is just partisan hackery, and lends fuel to the accusation that he and Heritage are only taking interest in these issues because under the Obama administration the targets of U.S. Attorneys are more likely to be white collar Heritage donors than the hippie stoners and urban heroin addicts Meese spent years trying to strip of their constitutional rights.