Posted on 04/21/2014 3:38:55 PM PDT by jazusamo
Attorney General Eric Holder announced today that dozens of lawyers will be reassigned to the Justice Department’s pardon office in anticipation of a surge of applications from drug offenders for reductions in their sentences — applications the Obama administration has signaled it would look upon favorably. This exercise is another transparent usurpation of legislative power by the president. The pardon power is just the camouflage for it.
The pardon power exists so that the president can act in individual cases to correct excesses and injustices. It is not supposed to be a vehicle by which presidents rewrite congressional statutes that they disagree with philosophically (just as “prosecutorial discretion,” another doctrine the Obama administration has abused, is not supposed to be a vehicle by which the president substitutes his policies for duly enacted federal law).
The Obama administration is philosophically opposed to mandatory minimums in the federal penal law, especially in the narcotics area. The Justice Department is filled with racialist ideologues and pro-criminal rights ideologues (they tend to be the same people) who have long contended that the drug laws are racist. This is another of those absurd arguments that finds racism based on unintended consequences rather than racist designs.
The mandatory minimums for crack (“cocaine base”) crimes are more severe than for powder cocaine (which was called “cocaine hydrochloride” back when I was a federal prosecutor). Many crack distributors are black and Hispanic, while many powder cocaine distributors are white — although there are plenty of whites in the former category and minority dealers in the latter. Thus, it is contended, the mandatory minimums are racist in effect.
It has been argued for decades that this is unjust. As a matter of racism, this claim is frivolous. As a matter of logic, it is not: crack is rightly punished more severely because it is more addictive and ruinous. For a long time, though, crack was punished at a 100:1 ratio to powder coke (e.g., the 10-year mandatory minimum kicked in at 5,000 grams, or 5 kilos, of powder coke but only 50 grams of crack. It is perfectly constitutional for Congress to do this, but it is not sensible — crack may be worse than powder coke, but not a hundred times worse.
The way our system deals with bad laws is to change them by legislative repeal or amendment, not for the president to decree new laws unilaterally. And, in fact, the drug laws have been changed: Crack is still treated more harshly, but the crack floor for the 10-year minimum was raised (by a factor of more than 5) from 50 to 280 grams. Similarly, for the 5-year mandatory minimum, the ratio is no longer 100:1 — while it is still triggered by 500 grams of powder cocaine, it now takes 28 grams of crack, not 5 grams.
To many people, this is still too wide a disparity, but note that the difference is based on the severe addictive tendencies and street-level violence associated with crack, not race. And in any event, if the law is to be changed, our system requires that it be changed by passing laws in Congress .
President Obama is using the pardon power to rewrite the statute unilaterally. The time drug offenders spend in jail will be based on his subjective notion of fairness, not the policy embodied in our drug statutes. This is not faithful execution of the law, which is the president’s core constitutional duty. It is the execution of Obama’s whims.
Holder’s announced reasons for this policy are bogus. Because the federal and state governments have concurrent jurisdiction over narcotics offenses, the feds focus on drug importation and distribution felonies, while the states cover mere possession and use. So it simply isn’t true that thousands of people are languishing in federal prison simply for drug possession or addiction.
And as far as violence goes, federal statutes and the federal sentencing guidelines enhance prison terms based on violence and, in particular, the use of firearms in connection with drug crimes. That is, nonviolence has already been taken into account when judges sentence drug offenders.
Finally, Attorney General Holder and the Obama administration may be the worst imaginable officials to carry out a commutation program based on the president’s pardon power. When he served as deputy attorney general under Attorney General Janet Reno, Holder was infamously at the center of the Clinton administration’s pardon scandal. He was a key figure in the 1999 pardons of FALN terrorists; and the pardon process he engineered for Clinton resulted in the release not only of Marc Rich but of two convicted Weather Underground terrorists. So obviously, his idea of “nonviolent” probably does not conform to what most Americans think of when they hear that term.
Moreover, we should be under no illusion: this is not an exercise in mitigating injustice in individual cases. This is an abuse of political power to rewrite the federal drug laws because, as a matter of ideology, Obama does not agree with stern sentences for drug offenders.
A brand new crop of Dem voters I presume?
I’m disappointed in Andy. He apparently can’t read the plain language of the Constitution.
The pardon power given the President is one of the very few constitutional powers with no checks or balances on it. It the President decides to, he can empty the federal prisons tomorrow, and it’s entirely constitutional for him to do so.
The only check on the pardon power is impeachment. One can argue that this plan is unwise, but not that it’s unconstitutional or a violation of “how our system works.”
Not without reading stuff into the Constitution that just isn’t there.
I imagine a fair number.
McCarthy nailed it when he brought out there’s not thousands in fed slammers for simple possession and using as liberals harp on constantly, the ones the feds lock up are dealers and importers for the most part.
That’s a good point but it seems an abuse of the pardon power when he does it wholesale because he doesn’t agree with a particular law, I doubt that’s what the founders intended for the pardon.
President Jefferson pardoned everyone who had been convicted under the Sedition Act.
Get ready for the surge of criminal activity that will quickly follow their release.
No doubt some percentage of these guys were just classic “stoners” who got unjustified, harsh sentences.
But a higher percentage will be classic “sociopaths” who will enthusiastically return to a life of crime.
Do their release papers come with a voter registration card?
How many were pardoned by Jefferson?
Obama said he was building his private army, on par with that of the U.S. military, and this is Step #1.
Step #2 is the illegal aliens and SEIU thugs.
Step #3 will be the blacks dependent on government, who will be told to join or have their benefits cut off.
Correct. Internal “security” armies (like the Brownshirts) seek out criminals to fill their ranks. They want people who will happily rape and maim and kill at the whim of their political bosses. That’s the reason for the move to eliminate the right of an employer to ask for a criminal record. It allows the DHS to hire vicious psychopaths to use against the American public.
Good.
You are right. As as much as I can’t stand Obama, this is one of his powers as President.
I’m positive you’re right, but the Constitution says what it says, not what we think it ought to say. And I’m also positive the Founders were well aware they imposed no checks or balances on the power of pardon, and that they had good reason for doing so, in their opinion. This was, for instance, an imitation of the power of the English monarch in this regard.
According to Wiki, TJ pardoned 119 people. Proportionate to population, that would be something close to 10,000 or 12,000 today.
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