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DOJ Switches Sides

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Yesterday, I wrote about the political motivation that lies behind DOJ's push to commute the sentences of thousands of drug dealers.  Essentially, it's a move to spike turnout among Obama's base in the mid-term elections later this year.

Of course, to say that the coming mass of sentence commutations is politically motivated is not necessarily to say that it's a bad idea on the merits.

And it's not a bad idea.  It's a truly awful idea  --  technically legal but actually lawless, and certain to produce more of the social destructiveness and misery that comes with drug trafficking.  The Administration is simply ignoring what its own data, released this week, demonstrate:  That more than three-quarters of convicted drug offenders go back to crime after their release from prison.

There are those of us who thought the prosecuting arm of the government was there to put bad guys away.  Under this Administration and its view of America as the oppressor and criminals as the oppressed, all that has been reversed.  The Justice Department exists, not to incapacitate lawbreakers, but to put them back in business.

Your tax dollars at work.
The entire enterprise rests on a misbegotten premise.   There is no evidence the public believes sentences for people who deal in hard drugs  --  heroin, meth and PCP, to name just three  --  are too long.  Instead, it believes, correctly, that dealing in such drugs lies at the center of a great deal of social damage and individual heartache and loss.  The Justice Department's priorities should actually embody this understanding, rather than occasionally and not very convincingly pretending to share it. 
The truth of the matter is that the sentencing regimen the Department now wants to subvert has achieved enormous success in reducing crime through the increased use of imprisonment.  It would be nice to think that drug pushers will mend their ways and become hard-working taxpayers, but history tells us that, for by far the most part, it's not going to happen.  We should continue to pursue initiatives we know work, rather than head back toward the failed policies of the past.
The lesson here is stark.  According to the Department's own study, 76.9%  --  or slightly more than three-quarters  --  of drug offenders will return to crime after their release.  To release them prematurely from legally imposed sentences is thus virtually to guarantee more crime more quickly.  Is this why we hire federal prosecutors?
Individuals and communities victimized by the drug trade should be the focus of our concern, not the criminals who do the victimizing.  Drug dealers did not get the sentences they're serving because the American people are punitive and uncaring.  The opposite is true:  Our citizens want only to protect themselves from the depredations of drugs and drug trafficking.  The traffickers made their own choices, and have themselves, not the electorate, to blame for their fate.  (This is not to mention that many of the traffickers the Department now wants to release would have had an easier fate to start with had they taken lenient plea offers rather than wanting to try to bamboozle the jury with a concocted defense).

Finally, while it's true that the President has the constitutional authority to grant commutations as he pleases, it's a burlesque of that authority to grant commutations on this sweeping scale simply because it's demanded by the voting blocs and interest groups that share his criminals-are-victims ideology.  

With some exceptions, the power of clemency has been seen as a means to correct injustices in a very few, truly exceptional cases in which the system has undeniably failed. But that is not the case here.  To the exact contrary, the federal criminal justice system  -- in stark contrast to the long list of fumbled domestic programs that have brought trust in government to a near all-time low  --  has helped achieve an historic drop in crime over the last generation. 

When there are individual instances of clear injustice, they can be corrected, and the President has done so by granting several commutations based on case-specific circumstances. But a generalized slashing of sentences lawfully imposed, merely because lighter sentences "probably" would be imposed today, is lawless.  It would amount to a de facto abolition of the federal Saving Statute, 1 U.S.C. Sec. 109. Congress could not have been clearer:

The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.

It is impossible to see a mass commutation like the one now being planned as anything but an effective repeal of this statute.  When the President's clemency power has gone to that extent, it has gone too far. 

1 Comment

The 76.9% figure includes the 56.1% of offenders arrested for "public order" offenses, while includes parole violations and failures to appear. The data doesn't break out how many of those 56.1% were also arrested for some other offense, but it certainly isn't 100%. I would agree that the 24.8% of offenders who commit violent offenses and the 33.1% who commit property crimes raise concerns about the impact of shorter sentences on crime rates (depending on the crime; I'm not too concerned about a 33.1% chance that a released offender shoplifts some gum from CVS). But the magnitude of the threat is almost certainly less than you assert in this post, since some portion of that 76.9% of re-offenders got arrested for parole violations that have no real impact on society.

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