9/26/2011

By Christopher Indelicato, J.D. Candidate

MSNBC and Politico co-sponsored a debate of the Republican presidential candidates at the Reagan Library in Simi Valley, California, on September 7.  As a sign of times, the majority of the conversation at the debate dealt with the dearth of American jobs and President Obama’s Affordable Care Act.  The conservative candidates received much applause when they directed their ire at President Obama, but arguably the biggest applause line of the night did not come from any of the eight members of the Republican field standing on the stage.  Indeed, the rousing applause rang up from the crowd in the Reagan Library’s Air Force One Pavilion when moderator Brian Williams directed a question to Texas Governor Rick Perry that began, “Governor Perry, question about Texas.  Your state has executed 234 death row inmates, more than any other state of modern times…”  Mr. Williams was not even able to finish his question before the crowd broke out into the first of two rounds of applause, giving viewers a stark reminder that even in a year when jobs plans and healthcare reform promises take center stage there remains a place for issues of criminal law in the minds of many voters.

The applause concerning capital punishment also serves as a reminder that any of the Republican candidates contending to be sworn in on January 20, 2013, would be the nation’s chief executive officer of all federal policy, including criminal policy.  A president’s approval is required on any piece of legislation that intends to deal with criminal sanctions and a president has a duty to direct the Department of Justice, nominate heads of all the federal organs of criminal law enforcement, and, most importantly, nominate the members of the federal judiciary.  Each of these presidential powers or responsibilities can make the president a profound shaper of this nation’s response to criminal behavior.  In as heightened a political environment as we are in, a political junkie like myself would be remiss were he to not take the opportunity to bring together his interest in criminal law with his love for politics at so opportune a moment.  In keeping with this election cycle theme, this blog will survey the potential effects (one can only speculate, absent a crystal ball) each candidate for office might have on criminal law were they to be trusted by the electorate to lead our nation in the next four-year term. 

Due in part to the social media times and in part to the issues that Americans care about in this cycle, the candidates’ websites seem to lack a direct reference to their stances on law and order on their websites; President Obama’s reelection website is slightly more than a glorified blog!  Thus, to determine just how these candidates may affect the fortunes of this nation’s criminals and criminally accused, I must rely on past positions, statements, and the records of the candidates in their current or prior elected offices; and I will likely sprinkle in some commentary based on their expressed political positioning based on the political categories they seem to fall into.  Much like a media-sponsored debate, candidates must be polling within the top tier of their party in order to be surveyed; should the top tier get a shake-up, this blog series will certainly attempt to remedy any deficiencies if the shakeup is deemed to be a serious one.  Certainly a candidate must be declared in order to be surveyed (unless this author cannot resist the urge to look into a non-declared candidate).  We’ll start with the candidate currently polling at fourth place in the national average of the Republican field, the Ames Straw Poll Winning Congresswoman Michele Bachmann.[1]

Congresswoman Bachmann has the distinction of being the only declared presidential candidate in the 2012 election cycle who is a woman.  She is also one of the most reliably Republican Candidates in the whole field.  She has been labeled – and, indeed, labeled herself – as a member of the newly influential faction of the Republican Party known as the Tea Party; it was Congresswoman Bachmann who brought the Tea Party to the House of Representatives in the form of the Tea Party Caucus.  Still, despite this identification of Ms. Bachmann with the Tea Party faction, her politics and policy statements characterize her as firmly in the category of heartland conservative.  While I shall not pretend to have intimate knowledge of the Tea Party political posturing beyond observation of rallies, public statements, and websites, the movement has never seemed to have as strong a religious component to it as the more culturally conservative heartland Republican Party does.  Ms. Bachmann most certainly possesses a strong religious compulsion in her views on politics and policy-making, as evidenced by many a public statement and by many co-sponsorships in the House of Representatives, as discussed below.

Unfortunately for our inquiry, Representative Bachmann’s record in the House concerning issues related to criminal law is remarkably thin.  Much of Ms. Bachmann’s efforts in the House—through either sponsorships or co-sponsorships—are focused on economic and broader social interests.[2]  It is from looking at her non-criminal law related sponsorships (sponsorships of those bills not referred to the House Committee on the Judiciary) that we get a look at Ms. Bachmann’s general politics.  A cursory look at those, especially from the 112th and 111th Congresses, informs the observer that Congresswoman Bachmann ascribes to the doctrinal views at the heart of the Republican Party: a devotion to unencumbered free market economics, a belief in an almost unlimited right to bear arms, a sense that smaller or less active government is preferable to large or more active government, and a philosophy informed by generalized Judeo-Christian values.  Many of Ms. Bachmann’s sponsorships or co-sponsorships are of bills that can be objectively characterized as symbolic gestures, such as the nearly ten bills repealing the Democratic Healthcare Reform that bear her name or the resolution requesting an independent investigation into ACORN that she co-sponsored, giving us an insight into her solid placement within her party.

Perhaps the pieces of legislation that most easily show Ms. Bachmann’s political leanings also give us a bit of insight into what a President Bachmann’s criminal law strategy might entail.  In each of the 110th, 111th, and 112th Congresses, Congresswoman Bachmann’s name was attached to a piece of legislation assigning the title of “human being” to unborn human embryos still in a mother’s womb.  Specifically these bills were the “Right to Life Act” and the “Life at Conception Act”.  While the most recent iteration of this bill contains a portion stating that no part of the bill “shall be construed as to require the prosecution of any woman for the death of her unborn child”, it cannot be doubted that changing the definition of the word “human being” in the United States Code would criminalize abortion.  First-degree murder is currently defined as “the unlawful killing of a human being with malice aforethought”[3], thus ending the “life” of a human embryo would fall under the statute were an embryo to be considered a “human being”.  Whether this would lead to the prosecution of either the mother seeking the abortion or the doctor performing it remains to be seen.  Ms. Bachmann’s continued support for this bill – and various statements on life beginning at conception – demonstrates the prominent role that social positions play in her politics.  Indeed, this bill is not the only one where social politics played  role in her sponsorship, as her name was also ascribed to Former-Congressman Bart Stupak’s “Human Cloning Prohibition Act of 2009” that declared human cloning to be punishable by up to 10 years in jail and/or a fine of not less than $1 million.

It is worth noting that none of these bills ever made it to the floor of the House of Representatives for an up-and-down vote.  While this does not speak to Ms. Bachmann’s personal politics at all, it does give us some insight into the reality that a President Bachmann might face were she to attempt to pass such legislation through Congress during her tenure in the Oval Office.  So while a President Bachmann might wish for a more Judeo-Christian policy on criminal law issues, it would take a dramatic change in the composition of Congress for much of the culturally-inspired policies to become law.  Still, it is possible that her political appointees in charge of law enforcement agencies would reflect her personal beliefs on these issues.  The most we can draw from this particular aspect of her politics is that she allows her Christian beliefs to inform her policy-making.

The one bill in the past three Congresses that was principally sponsored by Bachmann dealing with an aspect of criminal law is the “Tracking Registered and Convicted Known Sex Offenders Act” introduced in the 110th (as H.R. 6539) and 111th (as H.R. 1750) Congresses.  This act would have allowed the FBI to be more forthcoming with information about offenders whose crimes were of a sexually abusive nature to state and federal programs that wished to factor in such status in their determinations.  Essentially, this would slightly modify the punishment for sexual offenses without changing the statutes concerning them by taking away some of the offenders’ privacy rights.  Truth be told, this would not be a huge departure, as sex offenders already have reporting requirements that infringe upon their privacy in many states, like my home state of Florida.  Still, it allows us to note her stance on punishment of sexual offenses.  This bill also never made it out of committee.

The final aspect of Michele Bachmann’s criminal law policy that we might extrapolate from her past positioning and recent policy statements concerns the jurisdiction of Article III courts in matters relating to national security.  Like many in her party, Ms. Bachmann does not feel that captured enemy combatants deserve to be tried in normal criminal courts.  In fact, during the Ames, Iowa, debate this August, Ms. Bachmann took the stance that these suspected terrorists did not deserve the due process protections guaranteed under the United States Constitution.  While this is hardly a policy position held solely by the congresswoman, it does show us that Ms. Bachmann is not of the belief that all people under the jurisdiction of the United States are entitled to the constitutional protections granted in the Bill of Rights.  Whether or not Ms. Bachmann holds this as applicable only to suspected terrorists labeled as enemy combatants is unclear.  Her desire to keep suspected terrorists from the legal process taking place in the Article III courts is further established by her co-sponsorships of the “Boumediene Jurisdiction Correction Act” and the bill “[t]o prohibit the prosecution of unprivileged enemy combatants.”[4]

Admittedly, looking into Michelle Bachmann’s potential positions on federal criminal law has been ultimately unsatisfying.  There simply has not been enough of a focus in this election on issues dealing with crime and punishment to make up for a rather thin record dealing with issues of criminal law.  Still, I think we can expect Ms. Bachmann to be a rather typical conservative in the criminal law realm if she were to be elected, focused more on law and order than defendants’ rights, though there is little hard evidence to support this assertion other than the example of members of her party who are similarly politically situated.  What I think is readily apparent is Ms. Bachmann’s willingness to allow her Judeo-Christian philosophical underpinnings to direct her policies in the realm of criminal law.  Furthermore, it is not stretch to say that Ms. Bachmann does not recognize a place for the normal criminal law system in the continued effort against terrorism worldwide.