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Where This Is Coming From, and Where It's Headed

Daniel Horowitz has a wonderfully perceptive article in Conservative Review about President Obama's clemencies last week, and his overall push for criminal justice "reform."  I repeat several paragraphs verbatim:

With much of Obama's amnesty for illegal aliens on hold as a result of [a federal district] court's injunction, the legislator-in-chief is looking for every remaining opportunity to fundamentally transform America from the Oval Office...  His next conquest is the dismantling of law and order and criminal justice laws that have helped lead to a miraculous decline in violent crime over the past two decades.

On Monday, Obama announced his plan to commute the sentences of 46 drug offenders serving time in federal prison, bringing the total number of commutations to 86 since he has taken office.  He even had time to write them a personal letter as he ignored the family of Kate Steinle and other victims of violent crime, such as Kevin Southerland who was gruesomely stabbed to death on the subway right in the nation's capital.  While libertarians and some conservatives are supportive of targeted changes to drug laws, everyone should be gravely concerned about where this is coming from and where it's headed. 

Good point.  How is it that the President found time to pay an amicable and understanding call on convicted traffickers in hard drugs, but couldn't so much as have an Assistant Secretary drop a line to murder victims' families?  Or, for that matter, to the families of the two policemen assassinated in New York?

Horowitz continues:

During his announcement, Obama noted that these individuals were not "hardened criminals" and were in prison only for "non-violent drug offenses."  This is part of the broader red herring argument propagated by the bipartisan "criminal justice reform cartel" - that there is an epidemic of 19-year-olds locked up in federal prison caught smoking marijuana once in their lifetime.  But the reality is that most people serving in federal prison have done some serious drug dealing or are connected to violent drug cartels or gangs.

Indeed.  I can tell you, having been a federal prosecutor for many years, that it is essentially unheard of for anyone, much less a teenager, to be given a prison term for smoking a joint, or for any kind of simple possession of pot.  This is just baloney peddled by people who are either intentionally deceitful or don't know what they're talking about.

A quick glance at the sentencing history of these 46 individuals reveals that a number of them were dealing or trafficking large amounts of cocaine or methamphetamine.  Moreover, Rep. Bob Goodlatte (R-VA), Chairman of the Judiciary Committee, is demanding to know how many of these individuals were connected to gangs, the quantity of narcotics they possessed, and whether the prosecutors and victims were notified.  Keep in mind that many of these individuals could have initially been charged with greater offenses but entered into a plea bargain.

No kidding.  Simple possession charges are routinely bargained down from possession with intent charges.  Anyone conversant with the system knows this as well.


Thanks for the link to Horowitz commentary. I am curious if you agree with a statment he made in a prior piece, namely that "One can make a strong case for getting rid of some non-violent drug laws as an ends to itself...." https://www.conservativereview.com/commentary/2015/05/gop-still-the-party-of-law-and-order

I can't speak for anyone else, but personally, I see a significant gap between those who choose to violate existing law, especially those who have violated multiple laws on multiple occasion, and are sentenced pursuant to a negotiated plea which involved some provable counts being dismissed, and your question.

I do think one can make a very strong case that prohibition regimes for substances that remain in demand by a substantial minority of the population are doomed to failure, and further, will lead to significant societal pathology, such as official corruption, crime as a valid career choice in some economic groups, more. A case study of the 18th Amendment should probably tell us all of this.

However, nothing in this opinion in any way justifies or mitigates a violation of existing law, especially when done for financial gain in circumstances that can reasonably be seen to lead to the death of other humans. The law hasn't changed yet, and may never so change.


Doug --

I'm trying to stay away from comments that seem to want to hijack the thread to a different topic. But yours is too good to pass up.

I took a look at the entire passage from which you quote one clause. Here it is:

"Libertarians and some conservatives might feel passionate about ending mandatory minimums for non-violent drug offenses or initiatives to “de-militarize” the police. However, those policy initiatives should be pursued in a propitious political climate with a president who is not bent on using such policies as a platform to dismantle every aspect of our criminal justice system that has led to a swift decline in violent crime in recent years. One can make a strong case for getting rid of some non-violent drug laws as an ends to itself, but it certainly is not the panacea for the current problems with violent crime and Obama’s systematic war on law enforcement."

Goodness me! I think your rendition of this might give the expression "quoting out of context" a bad name.

Still, I don't want to seem ungracious about it, so I'll reiterate my oft-stated position: Smoking pot is already de facto legal, and is a subject of significant interest only to dead-end libertarians (and, I guess, pot smokers). Support for the legalization of the other drugs is essentially zip, http://www.crimeandconsequences.com/crimblog/2015/04/of-drug-legalization-and-flyin.html

While Bill and I probably have different views on the use of clemency, Bill is right as rain on this one.

So Doug . . . . I think the lack of clemency (86 is a drop in the bucket). What this means is that generally speaking, the people who are incarcerated in federal prison are where they belong. Else, more would be granted clemency.

We know Obama looks at the world through a racial lens. He went so far as to link voter ID laws with the racism that led to Charleston. He sees the criminal justice system as racist simply because there is a racial disparity in the prison population. Obama seeks, therefore, to lessen the impact of the criminal justice system on minority criminals. To achieve this end, he is cynically manipulating a pliant media and ill-inforned public opinion influenced by seductive phrases like "non-violent offender."

What astounds me, Doug, is that you fall for this obvious nonsense.

federalist --

I would take a more sanguine view of the coming clemencies if three things were different: If they were not going to be used to simply re-write sentencing statues Obama disfavors; if they did not take root in a hard left, criminals-are-victims ideology; and if I had greater faith in the judgment and honesty of this particular President.

I am bemused that federalist sees granting of so few clemencies as a sign that all the other 207,750 other federal prisoners must be where they belong, while Bill sees this same data as evidence of Obama "re-writ[ing] sentencing statues." Neither fits reality, at least as I see it.

I will keep it simple by trying to channel what I think Daniel Horowitz suggests when he says "One can make a strong case for getting rid of some non-violent drug laws as an ends to itself." Specifically, I think it should be beyond dispute, within a society seriously committed to human liberty, that an offender ought not get an LWOP sentence for being involved in the economic transactions of drug dealing without having directly seriously physically harmed another. However, there are surely hundreds, if not thousands, of federal prisoners serving LWOP sentences being involved in the economic transactions of drug dealing. I believe the latest round of Obama clemencies involved some of these folks --- but not Weldon Angelos is one who still has not gotten clemency relief even though Paul Cassell (and Bill Otis, I believe) have said he got hammered to hard.

I am sure you both have plenty of reasons to hate Obama and also to be concerned about offenders getting more attention than victims. But, especially as you make (too) much of small and justifible clemency efforts, it seems that an extreme anti-Obama ideology too often colors your commentary.

1. You are correct in recalling that I agree with my friend Paul Cassell that Angelos' sentence was excessive given the offense.

2. You are incorrect, to say the least, in suggesting that I hate Obama. I don't really get this hate stuff. He's wrong and he's dangerous, but my reaction to public policy issues and public figures is sharp disagreement, not hate.

Apologies, Bill, for my sophmoric use of the term "hate" above. Poor form on my part.

More to the point, given that you have identified at least two prominent federal defendants who you agree were given too long a sentence in light of their offenses and backgrounds --- i.e., Scooter Libby and Weldon Angelos --- I wonder why you do not think there are likely at least a few hundred more comparable to these two among the roughly 207,750 current federal prisoners.

Even if we were to assume the federal sentencing system is not too harsh in 99.5% of all cases, that .5% left over amounts to more than 1,000 federal prisoners sentenced too harshly. In turn, Obama's commutation of 89 prisoners to date is less than 10% of that population. Even if that number increases 10-fold --- so he grants 890 commutations --- this still seems a very far cry from trying to "simply re-write sentencing statues Obama disfavors."

Am I missing something in this analysis?

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