A number of trends have been stymied by the rise of law and order populism sparked in no small part by Donald Trump. Of particular note has been sentencing reform or rather a particularly ill-considered set of policies intended to address supposed overincarceration in the United States. For a number of years, now, Americans have been told by academics, the media, the entertainment industry, and even many on the Right, that people are going to jail for too long for doing too little that is genuinely wrong. Not surprisingly, the war on drugs is at the center of this dispute. Long articles in various magazines, op-ed columns in newspapers, and feature films have sought to convince the public that the pursuit of law and order has ruined and even taken away many thousands of lives through the use and abuse of federal mandatory minimum sentencing statutes.
Sadly, there is something to this charge. Federal laws mandate heavy sentences—sometimes even life sentences—for crimes that seem relatively minor, including possession of fairly small amounts of various illicit drugs. The reasoning is that possessing more than one can consume in short order constitutes possession for purposes of distribution. These laws have even been used to get accused persons to plead guilty and accept fairly stiff sentences to avoid even longer jail terms. There have been abuses. Some people have been sent to prison for unjustly long terms on account of fear, bad lawyering, and even vindictiveness.
But it is important to recognize, first, that there are remedies available for dealing with these cases of injustice; second, that these instances are not nearly so extensive as some would have us believe; and third, that there is valid reason for federal sentencing guidelines, reasoning that is not easily answered by those who seek decriminalization of recreational drug use and is only partially answered by more sensible arguments rooted in federalism.
First, as to the remedy for overlong sentences, it is a simple one: the pardon power. The legislation proposed and far along toward adoption when the electoral season began would have, in essence, released whole categories of prisoners earlier than provided for in their sentences. The result would have saved time and trouble for the Justice Department and the White House, but would have let back onto our streets large numbers of habitual criminals who had finally been put away under minimum sentencing guidelines. These criminals needed to be put away for a long time, for the sake of law-abiding citizens. A government’s first job is to protect its people from violence, whether done by invaders or by criminals in their midst. This makes taking habitual criminals off the streets a moral imperative for any legitimate government.
It may well be the case that some persons sitting in prison should not be there, or at least should not be looking at staying there for as long as their sentences dictate. Again, the proper response is a well-considered pardon. The pardon power is an important right and duty of the president. Too often abused in order to reward large donors and criminals popular with some influential group, its purpose is to allow the chief executive to determine whether particular people deserve to be let out of prison (or kept free from prosecution) on account of circumstances not easily taken into account by the justice system. The proper answer to supposed hordes of prisoners incarcerated beyond the limits of justice because of a single drug possession conviction would be best answered by a thorough review of particular cases to see whether specific persons were in fact caught up in an overly vigorous prosecution or technicality.
Why is the Obama administration not taking this route? It is not simply a matter of not wanting to do the hard work of reviewing specific cases. Clearly there would not be grounds for releasing the thousands of prisoners contemplated under proposed release programs. The central motivation for recent proposals has been that of applying to prison sentencing the same racially charged “disparate impact” logic that has led to quotas in so many other areas of American life. Because African Americans make up a larger percentage of the prison population than of the population as a whole, the charge is made that the system must be somehow rigged against them. One obvious answer to this charge is that it needs to be actually proven through detailed analysis of the cases involved. Another equally important response: at least as important as incarceration rates is the fact that African Americans are vastly, tragically overrepresented among the victims of crime in America—and that they, like all Americans, deserve the protection of the law.
Current cop bashing and distrust of police and prosecutors is highly and dramatically overstated through the violence of racialist groups. But it should not lead us to ignore the simple facts regarding federal incarceration in particular. Most obviously, only one in ten American prisoners (about 200,000) are federal prisoners, and fully one quarter of these are illegal aliens. In addition, only 305 of those in federal prison are there for simple drug offenses, and almost all of these also are illegal aliens. Finally, as to the wisdom of early release, as noted by the Bureau of Justice Statistics, almost 77 percent of drug offenders released from the prisons in thirty states between 2005 and 2010 were arrested again within five years. Such recidivism rates make early release an act of injustice against law-abiding citizens, especially African Americans, striving to make decent lives for themselves and their children.
There can be little doubt that some prisoners currently serving long sentences for drug possession should receive, in essence, early parole. Indeed, as recently deceased Supreme Court Justice Antonin Scalia repeatedly pointed out, a number of considerations (“extenuating circumstances”) have been cut out of sentencing guidelines that probably should be allowed back in, at least for limited purposes. That said, we should keep in mind why it was that federal sentencing guidelines were instituted in the first place: to cabin the excessive and often-abused discretion of federal judges more concerned with the interests of convicted criminals than with the safety of the public and the ability of citizens, especially in poor areas, to build decent lives without fear of widespread criminal activity. Our government has failed for some time now to provide poor people in particular with the essential element of civilized, let alone free, lives, namely peace and good order.
When crime is rampant, no one is free except the criminals. The rest of us must hide behind locked doors, spending our time in public worrying about how best to keep ourselves and our children safe. Minimum sentencing was a necessary response to the same 1970s attitudes blaming “the system” for individual persons’ vicious conduct that led to exploding crime rates and a general breakdown of public civility. These trends turned major cities into jungles and undermined even the churches, where sexual predators were allowed back into the congregations on the mistaken notion that they could be trusted not to prey upon members of their flocks again.
The federalism argument has somewhat more logic behind it. It may well be the case that there is too much federal criminal law. In fact, so much seems obvious. This is particularly true, however, where regulatory law is concerned, that is, where people are being subjected to agency actions as well as criminal investigations for violation of rules laid down by the regulatory state. But here the point is that the rules themselves are decidedly within the province of the states. It seems doubtful at best that the best place to start reform in this area is with drug trafficking laws, which concern by their nature the interstate commerce in illegal substances. And we would do well to remember that many of the most intrusive laws enforced by our increasingly militarized police are the products of an administrative state—at the state as well as the federal level—too enamored of its own power and its desire to act as the people’s nanny and to pay for the service through a byzantine regulatory apparatus including confiscatory fines. Criminal justice reform must be made after careful consideration, and then it must be conducted with a precision scalpel, not a meat cleaver—let alone an open door for habitual criminals.
Bruce P. Frohnen is Professor of Law at The Ohio Northern University Pettit College of Law.