Whether President Obama has the authority to allow the effective nullification of our immigration statutes through executive order is an interesting subject, about which I may have more to say later. But the immediate implication is clear: Obama, toward the end of his term and perhaps before, is going to put thousands of dangerous hard drug dealers back on the street. He'll do this via executive clemency.
The clemency program has already been announced by DOJ, but until last night, there were realistic questions about how far it would reach. Those questions are now answered. There will be no effective limit whatever.
Nullification through "discretionary" non-enforcement of law is of debatable legality, but the clemency power is not. It exists, and belongs to the President alone.
There was a glimmer of hope until last night that the President would be restrained in exercising this power, and would pay at least some heed to the idea that hard drug trafficking harms America. That is over with. When a President openly and aggressively sympathetic to lawbreakers is willing to use a power that may be there or may not, there is no question left about his willingness to use a power that actually is there.
We saw last night what Obama will do now that he has no political accountability left. But what we saw is only the beginning.
Bill, do you think the President is going to commute the sentences of inmates on federal death row and military death row?
Based on last night, Bill, do you continue to predict Obama will grant clemency to "tens of thousands" of prisoners? Is 20,000 clemency grants your "over/under"?
I am truly hoping to get, in the wake of last night's Obama announcement, the current Otis clemency benchmark. Thanks in advance for your predictions.
I doubt that the death sentences will be commuted. Obama says he believes in the death penalty, and I think he's being truthful about that. He would limit it more than I would, but the number of killers on federal and military death row is so small, and their cases so extreme, that I don't think they'll get commutations.
Drugs is a different matter. So far as I can see, Obama thinks drugs are no great harm to the country, and that they are overpunished. So commutations for drug pushers will be legion.
One of the things that's most appalling about both the immigration move and the coming clemencies is that they were and are being pushed back until after the midterm election. The idea of making one's self politically accountable seems to have vanished. If Obama thought either move were popular with the voters, of course he would have done them BEFORE the election. It's only because he knows they aren't that he didn't.
I am still looking for a number, Bill, and your reference to drug offenders suggests maybe you now think commutations might top 50,000 or more. As you know, roughly 1/2 of all federal prisoners are in on drug offenses, so there is a population of nearly 100,000 federal drug offenders in prison that Prez Obama could potential grant clemency.
Because you proved astute in predicting the fate of the SSA and JSVA, I am hoping you will predict just how many clemency grants you expect to see from Prez Obama. I am worried we will only see a few hundred grants, but you in the past have suggested you are expecting tens of thousands. Is that prediction still sound in your eyes?
Before this thread started, I asked you to give the number of people to be murdered by prisoners released under "smarter sentencing" programs you would say is the point at which "smarter sentencing" had become too costly to continue doing. No such number has appeared.
I doubt that it's wise for me to answer questions when the ones I asked previously go without answers.
In addition, the fact that one of the leading advocates of early release is willing to accept the murder of (an unspecified number of) innocents as the price of being nicer to the guilty is vastly more important than whether I can accurately predict the extent of President Obama's obliviousness. The latter concerns whether I'm a good swami; the former concerns a hugely important aspect of the sentencing reform debate.
Bill, I answered your question by suggesting that whatever error rate you consider "too high" for convictions is probably about the same level of error rate I would consider "too high" for early releases. So really I am waiting for you to get this (somewhate silly) game of numerology going by explaining what number of wrongful convictions would think would call for no longer having a criminal justice system.
More critically, your rhetoric suggesting that smarter sentencing is about being nicer to the guilty is comparable to folks asserting that entitlement reform (which I think we both support) is about being meaner to the poor and the elderly. This debate is not advanced by such rhetoric --- rather, I am eager to figure out how we can and should seek to move forward with sound government incarceration policies is a country committed to individual liberty and limited government. I think smarter sentencing --- as well as smarter entitlement reform and smarter drug policies --- at this moment in US history could and should help enhance individual liberty AND help limit the size of government.
In contrast, rather than championing the usual conservative values of liberty and limited government, you seem here to contend that if any innocent might get harmed or killed by any reforms, then we ought to just stick with the status quo of modern mass incarceration and the modern drug war. You are, of course, entitled to this kind of big government view that embraces the notion, at least in the criminal justice context, that bigger government is better government. But that is not my view, and both American history and crime rate reductions around the world in countries with much lower incarceration rates suggests it is possible to do better in the US.
1. "Bill, I answered your question by suggesting that whatever error rate you consider "too high" for convictions is probably about the same level of error rate I would consider "too high" for early releases."
Translation: You AVOIDED my question by "answering" with a question -- a time-tested technique of evasion.
So I'll leave it there. It's clear you will not name a number of murders by early releasees that you would consider too high.
2. "More critically, your rhetoric suggesting that smarter sentencing is about being nicer to the guilty is comparable to folks asserting that entitlement reform (which I think we both support) is about being meaner to the poor and the elderly."
My "rhetoric" is accurate. When what I hear time after time after time is the making of excuses for criminals and the blaming of everyone else for being overly punitive, then it becomes tiresomely clear that the impetus behind the lower sentences movement is to be nicer to criminals. And of course no one bothers to deny the criminals would be the most immediate and direct beneficiaries of that movement. That's not nicer to them???
3. "I am eager to figure out how we can and should seek to move forward with sound government incarceration policies i[n] a country committed to individual liberty and limited government."
A sound incarceration policy is one that improves the safety of the huge majority of law-abiding people. The last 25 years tell us what that is. I would keep a policy we know succeeds rather than trade it in for one we know fails.
The last Congress shared my preferences and the one the voters just installed shares it even more.
I continue to be baffled that you and other intelligent people persist in being obsessed with the incarceration rate as the measure of the health of the system. It's the CRIME RATE. The incarceration rate affects a small minority; the crime rate affects us all.
4. "In contrast, rather than championing the usual conservative values of liberty and limited government, you seem here to contend that if any innocent might get harmed or killed by any reforms, then we ought to just stick with the status quo of modern mass incarceration and the modern drug war."
(a) It's not that the innocent "might" get harmed by criminals who have been released early. They HAVE been harmed, time and again. CJLF has posted dozens of their stories, usually in the News Scan. And the more early releases we have, the more these harms, up to and including murder, will mount.
(b) We ought to stick with what has worked to reduce crime and crime victimization, you bet. This includes more prisons, more police, more targeted policing, stop-and-frisk, more private security and (if this is part of it too) more lead-free paint.
5. "You are, of course, entitled to this kind of big government view that embraces the notion, at least in the criminal justice context, that bigger government is better government."
I think it's pretty clear to our readers by now who's for big government, so I'll leave it there, except to say one more thing: The problem with big government is not just its gargantuan size. The other problem is its ineffectiveness. Incarceration is one of the rare exceptions. It works. We're getting something for the microscopic portion of the federal budget spent on prison.
6. "...both American history and crime rate reductions around the world in countries with much lower incarceration rates suggests it is possible to do better in the US."
One of the more annoying manifestations of modern liberalism (and, increasingly, libertarianism) is its penchant to look down its nose at Wahoo Amerika.
That is not how I view our country. I'm actually happy and grateful to live here. I'm worried about its decline, its dumbed down standards, its loss of confidence, and its hand-wringing, yes. But I do not regard the United States as morally inferior to the world. I'm also impatient with the numberless lectures we get from the grandchildren of those we were critical in saving from Nazism and Communism.
They're really active with their mouths. Maybe they should give their ears a chance. We don't need to become more like them. They need to become more like us.
To be clear, Bill, in light of your final comment:
Do you think the world would be a (much?) better place if all other nations embraced mass incarceration on the scope and scale embraced by the US in the modern era?
I share your gratefulness for being an American citizen, as well as a gratefulness that the value embodied in the US Constitution prevailed over Nazism and Communism seven decades ago. And I do not regard the United States as morally inferior to the world. That said, I also think the US can and should always strive to be even better than it is, especially because the incarceration rate DOES effect us all economically and socially.
We also agree, of course, that the crime rate matters more than the incarceration rate. But, as we have discussed in another thread, there is reason to believe and fear that increasing the incarceration rate when done ineffectively --- such as during/through old and new Prohibitions --- may increase the crime rate. Ergo, smarter sentencing reforms aspire to decrease incarceration rates in ways that might decease crime rates.
I understand why you and others are eager to say "Let's not chance it... even though we might make more people free and safer, some innocents will be hurt and even killed by freed criminals." But my response is that, just as our commitment to defeat Nazism and Communism (and Saddam Hussein and ISIS) had some unavoidable personal human costs, so too might there be some unfortunate human costs in trying to move the US to being an even freer and safer nation.
I get and respect your view that the US is plenty free enough, but I urge you to at least try to understand those of us who think we can do better still. Notably, throughout all of US history, sound and sustained efforts to make more Americans more free tend to be lauded by future generations. I am hopeful efforts to reform mass incarceration --- like efforts to reform freedom from slavery and freedom from alcohol Prohibition and freedom to marry --- will be lauded by future generations.