"Oliver Twist." FDR wants more power from Congress. reorganization program executive branch.

As the legislative process picks up in many states, one common lobbyist will again take their leadership position at the statehouses.  The state Attorney General and local police chiefs will again move to the front of the line of “The People.”  And once again, their participation will prove a problematic separation of powers.  As most children learn in school: the Legislature, appointed by the People, makes the laws.  The Executive Branch, including prosecutors and police, enforce the laws.

For years I watched the full-time lobbyist of the Attorney General, their legislative specialist, testify against practically every attempt to reform the criminal justice system.  Every testimony was opposed to sentencing reductions, opposed to protections that would ensure more accurate identifications or confessions, opposed to every measure that might result in fewer prisoners such as the decriminalization of marijuana.  Meanwhile, they typically draft and submit about ten pieces of legislation that would result in sentencing enhancements, creation of new crimes, databases, restrictions, fees, or fines.  They have opposed opportunities for people being released from prison, and opportunities they might have once convicted.  This goes for associations of police chiefs, the state police, and individual police departments.  Advocates of community groups consider it a victory when the Executive Branch is silent, as it is inconceivable to hear them testify, “this law has gone too far,” or, more honestly, “my job is to enforce the laws you give me.”  When confronted on a personal level regarding a system universally declared to be broken, I have heard individual law enforcement officials say, “hey, I don’t make the laws.”  But don’t they?

Rhode Island’s Director of the Dept. of Corrections, A.T. Wall, is the longest serving director in the nation.  He always maintains the position, “My job is to deal with the prisoners you send me.”  His department rarely advocates for a position on legislation, and generally they merely testify in relation to prison finances or conditions.  Considering how society invests as little as possible in prisoners’ survival, it is not surprising that DOC officials and civil rights advocates are routine adversaries.  The position of an Executive Branch official, that “I enforce the laws you give me,” is respectable and proper.  Yet this view is all too rare.

Separation of Powers is a concept that is supposed to ensure this principal, that one body makes the laws while another enforces it.  Anyone who has ever done their own taxes can immediately figure out why accountants and lawyers write the tax code in such a Byzantine manner, “adding line 4c from Worksheet B to line 35 of Form 9962, and If A is not less…” There is an added element of job security.  A current Louisiana proposal for the state to buy up all the private prisons is contingent on those prisons being 90% full.  Presumably there would be a penalty if they are only 89% full or below.  Do we really want the Executive Branch to advise The People that this is a good deal when they have a financial incentive to incarcerate people?

If public safety is being debated, it is that public which should be at the top of the consultation list, not the public safety officers.  Even more precisely, the bulk of police are in poor communities like South Providence or Mid-City New Orleans.  The bulk of arrested drug users, of arrested drug sellers, and victims of violence are residents of those communities.  It stands to reason that these are the bulk of People whose name is invoked for more and more “public safety.”  These people, their neighbors and families, should have first dibs on the microphone when Legislatures are struggling with new proposals to deal with crime and punishment in America.  These are the communities that the Attorneys General and the police are, theoretically, protecting and serving.  They are the “primary stakeholders.”  Who wants peace more than the mothers of sons caught in the cycle of violence?  Who wants healthy solutions to addiction more than the child of a serious drug user?  Noble ambitions aside, first in line should not be those whose primary connection to drugs and crime is their paycheck.

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• Op-Ed Columnist: Lobbyists, Guns and Money (nytimes.com)