Sharon Dolovich
        Law

            While Law Professor Sharon Dolovich holds an extremely left-of-center set of views about criminal justice issues, she’s at least qualified to speak with some authority in the area, since criminal justice is also the focus of her academic research.  Unfortunately, like too many academics, she’s not content to just provide the ideas for a movement, but has also decided to be part of the movement.

            Both direct and indirect evidence of Dolovich’s activist-oriented academic work abounds.  A brief outline of Dolovich’s plans for her upcoming yearlong Radcliffe Institute Fellowship notes that “she aims to unearth the principles that guide the various aspects of the legal doctrine [of the Eighth Amendment]…to determine whether there are resources within the Constitution with which to challenge current directions in American criminal justice policy.”  Given her stated concern for developing “legitimate punishment in liberal democracy” (implying that the current process is somehow illegitimate), it’s a safe assumption that Dolovich is not particularly concerned with the current laxity of the criminal justice system.  Rather, she’s more likely interested in finding a liberal activist judge (or judges) who will help her and the criminal-rights crowd further weaken existing protections for victims of crime, and further incapacitate the justice system that seeks to punish wrongdoers.

            Dolovich’s activist agenda is evidenced in part by her leading role in ongoing efforts at containing or reducing the growing influence of privately run prisons.  Dolovich testified on this topic before the self-appointed “Commission on Safety and Abuse in America’s Prisons.”  Admittedly, the Commission carried no governmental mandate and had no authority to change anything about the penal system.  But while its authority was murky to non-existent, its agenda was crystal-clear.  The Commission’s mission statement notes, “As President Bush was calling the abuse at Abu Ghraib ‘un-American,’ many Americans raised similar questions about the mistreatment of prisoners here.”  Comparisons between Abu Ghraib and the American penal system: that sounds like an intelligent jumping off point for a fair discussion of our penal system.

Dolovich’s testimony to this agenda-driven commission touched on three points of concern with privately run prisons.  Last among them was Dolovich’s concern with “the unquestioned acceptance of the idea that sentencing policy is appropriately shaped through advocacy by interest groups with a strong financial interest in increased incarceration rates and longer prison sentences.”  Dolovitch asks a fair enough question.  But let’s if we change the subject of concern, to, say, K-12 education.  We might ask a similar fair question: why is there unquestioned acceptance of the idea that educational policy is appropriately shaped through advocacy by interest groups with a strong financial interest in smaller class sizes and higher teacher pay?  Or for that matter, why do unions and other interested groups receive scant scrutiny from the press, the public, and decision-makers?  In truth, Dolovich’s question is rather juvenile, crafted solely to score rhetorical points from an audience not inclined to think particularly hard about the actual idea.  Do your own research.  You won’t find Dolovich expressing any concern about the dozens of other equally powerful government-sector unions which dominate state and national politics.  Her concern with prison industry influence is a cover for a far broader agenda. 

While Dolovich often focuses her ire on the penal system in general, her particular concern lies with hot-button (and exciting) issues like the death penalty.  Dolovich helped lead a December 7, 2004 “Death Penalty Speakers Bureau Training,” hosted by the Los Angeles chapter of the left-wing Progressive Jewish Alliance.  Operating from the presumption that “The capital punishment apparatus of our criminal justice system is deeply flawed,” the event trained new activists to “become effective anti-death penalty advocates.”  Notable among Dolovich’s fellow trainers was Stephen Rohde, the immediate past president of the Southern California ACLU.  The training invitation acridly noted that, based on its refusal to abolish the death penalty, “The United States is in company with Iraq, China and other countries with egregious human rights records.”  “Egregious human rights record”, eh?  This much is clear: with Rohde and Dolovich, you can count on balanced (and nuanced) political analysis.

It’s good to remember Dolovich’s appearance at the ACLU-assisted anti-death penalty training when considering her more academically-oriented activities.  On November 4, 2004, Dolovich presented a speech at Loyola Law School titled “Punishment and Profit: The Case Against Private Prisons.”  The title and activity are both problematic.  They demonstrate that her academic ideas have moved from a concern for understanding the financial motivations of prison companies in the shaping of penal policy, to outright advocacy for one side of that dispute.  In turn, we should be asking ourselves a question when presented with Dolovich’s academic research: do we unquestioningly accept the idea that her research is concerned primarily with the truth, no matter what the result?  Or, is she perhaps agenda-driven just like the prison industry she denigrates?  Nobody disputes that professors have the right to pursue personal politics.  But when those positions are in the same area as their research, taking a political stance invites reasonable questions about the professor’s commitment to pursuing (much less publicizing) the unvarnished results.  Dolovich no doubt understands the either-or nature of her choice.  That she should still choose political advocacy is instructive. 

In this new light, Dolovich’s support for Proposition 66, the failed measure that would have defanged California’s tough three-strikes sentencing laws, reveals her not as a brave academic, but as a political radical who happens to also work at a prestigious law school.  Dolovich protested to San Diego City Beat, “The public is easily manipulated into endorsing tough-on-crime measures.”  In Dolovich’s view, “We need political leaders who are willing to tell the public straight up about the consequences of tough sentencing.”  Yet, despite unlimited room to ramble about her views, the only “consequence” Dolovich could muster was the issue of prison overcrowding.  Dolovich’s explanation disregards the significant possibility that prison overcrowding is the natural outcome of a law that’s working exactly as intended. Repeat offenders are now staying for extremely long durations instead of moving out through the old revolving door.  Viewed in this light, prison overcrowding is not an issue of justice, simply one of physical capacity. 

For someone so publicly dissatisfied with perceived issues of injustice, Dolovich evinced no concern over a more direct form of discrimination.  Commenting in an August 1, 2004 Inland Valley Daily Bulletin article, Dolovich defended the practice of letting inmates incarcerated for identical crimes serve radically different periods of incarceration based on gender.  In her view, “The Sheriff’s Department is entitled to keep the [hypothetical] check kiter for as long as his sentence.  He isn’t owed an early release.”  Dolovich concluded, “it seems reasonable to assume that these women in county jail are within the population that would be safe to release early.”  That all may well be true, but it’s also a generalization.  And as we already saw, Dolovich didn’t like a different generalization, namely, that most repeat offenders will keep committing crimes until someone or something, (usually the Three Strikes Law), puts a stop to them.  In short, consistency in criminal justice issues is not Dolovich’s strong suit. 

The inconsistency is more surprising when you read Dolovich’s tear-jerker views of the incarcerated.  She points out (rather obviously) that, “They’re not accorded the amount of respect that you would accord your next door neighbor or the person that you would walk by on the street.  They’re locked in very small cells…their keepers are people who look at them at best with indifference and at worst with hostility and contempt.  To put it mildly, it’s a dehumanizing experience.”  Where to begin with such inanities?  The implication that prisons need to be kindler and gentler?  The startling news that prison inmates are not shown respect?  That guards look at them with hostility – nay, contempt?  The weight of these Dolovich-provided epiphanies is almost suffocating.  Please, take a few minutes and lie down until you recover your senses.

If Dolovich isn’t yet ready to start a campaign to make prison more like summer camp, she’s at least ready to write positive op-eds about convicts.  Convicts like Alabama armed robber Larry Hope, who after an unspecified “altercation with guards at a work site,” was handcuffed to a horizontal bar known as the ‘hitching post,’ and made to stand with his arms above his shoulders for seven hours in the sun.  The path of Hope’s subsequent lawsuit, while long and winding, did end in a 6-3 affirmation that such treatment constituted unconstitutional punishment.  To Dolovich, though, the fact that the punishment occurred at all, and more specifically, that three justices failed to side with Hope’s complaint, is proof that “we are still far from a time when courts are ready and willing to protect convicted criminal offenders from official cruelty and caprice.”  Never mind that the three Supreme Court Justices voting against Hope referenced recent Alabama cases which had upheld use of the “hitching post” as punishment.  While “Ordinarily, the dissent would have a point,” Dolovich conceded in her July 13, 2002 Times Union op-ed, “some actions are so obviously beyond the pale of acceptable behavior…that ordinary common sense…is all one should need to know.”

Dolovich has an evident hankering to become a Supreme Court Justice herself.  While still early in her career, she has already broken new legal ground by advancing the heretofore-unknown legal principle (we can call it the “ordinary common sense doctrine.”)  Unfortunately, it’s a rather leaky theory.  After all, common sense tells us many things.  Common sense argues against allowing people to pay money for the pleasure of watching two men engage in a fistfight.  That’s just common sense.  But precedent tells us that based on cultural norms and accepted practice, we’re engaged in the entirely respectable pastime of watching a boxing match.  In short, Dolovich’s “common sense” doctrine is startlingly illogical, moreso because it’s the work of a presumably well-educated law professor.  One can only imagine the legal chaos should judges should simply ignore precedent and rely on visceral reaction as the sole means of adjudicating legal disputes.  That is to say, more often than they already do.

If it comes as any kind of surprise, along with being a death penalty abolitionist, Dolovich is a knee-jerk Bush-hater.  Not because she gave $200 to the Kerry presidential campaign (though she did), but because she gave triple that amount to the rabid radical group MoveOn, lately of the “Bush is a Nazi” entries to their internet ad contest.  Dolovich also authored an October 29, 2005 Los Angeles Times letter to the editor in reaction to the indictment (not, as might seemingly be importantly to a prisoner’s rights advocate, the conviction) of Vice President Dick Cheney’s chief of staff I. Lewis Libby.  Dolovich cast the legal filing as an “indictment of the whole Bush administration, and its determination to invade Iraq.”  Arguing, “Bush and Cheney have been lying to us on Iraq from the start,” Dolovich then asked one of her famous rhetorical questions: “Why should we expect anything different from their top aides?”  Apparently, in addition to serving as a shadow tenth justice on the Supreme Court, and introducing the “ordinary common sense doctrine,” Dolovich has also spent a good amount of her time trying, convicting, and sentencing upper level Bush administration figures in absentia, all without knowing any more than the morning newspapers tell her.

This willingness to stake out positions unsupported by the facts is also evidenced by the political petitions Dolovich signs.  Giving her Law School colleague Richard Abel a strong (if ultimately unsuccessful) run for his money, Dolovich inked no fewer than 12 petitions, staking out negative positions on the judicial nominations of Janice Rogers Brown, Michael McConnell, William Myers, and John Roberts.  Oh, there were more petitions than that; there always are.  So go ahead and check out the chart.  After about the eighth petition, you’ll get a little tired of the radical drumbeat, and nobody will blame you for taking a breather, or maybe just moving on.  We can’t all save the world via petitions.  Only specially educated law professors like Sharon Dolovich can.