In a recent Forbes column, I noted that President Obama will have to pick up the pace of his commutations if he hopes to make up for lost time and "correct as many injustices as possible," which is what his spokesman says he plans to do. According to former drug czar John Walters, Obama has not delivered on that promise yet because there aren't any injustices to correct. In a Weekly Standard essay titled "Deals for Dealers and the Phony Charge of 'Broken Justice,'" Walters and David Murray, who used to work with him at the Office of National Drug Control Policy and now works with him at the Hudson Institute, argue that the problem is not presidential inattention or Justice Department resistance but a lack of worthy candidates for clemency:
It looks more and more as if, even under very forgiving criteria and White House political pressure, finding authentic victims of mass incarceration has proven an elusive quest.
Does the Clemency Project simply need more time and lawyers to sift the evidence, or is it possible that the model of "low-level, non-violent, and unjustly slammed" federal inmates is not criminal justice reality?
The DOJ's commutation criteria are not "very forgiving." To the contrary, they are needlessly strict. Prisoners who have not served at least 10 years (even if that is the entirety of their sentence) are out of luck. So are inmates who have "a significant criminal history," gang ties, or less than stellar prison records. If the aim is to correct unjust sentences, those additional criteria make no sense. It should be enough that someone is serving a sentence longer than he would get under current law, which is the case with thousands of federal prisoners. For that matter, limiting commutations to "low-level" offenders is illogical, since "high-level" or "mid-level" offenders may also be serving excessively long sentences. In fact, we know they are, based on a subsequent decision by Congress to impose less severe punishment on crack dealers.
As far as Walters and Murray are concerned, however, there is no such thing as an excessive drug sentence. They complain that the 46 prisoners whose sentences Obama shortened last week are "overwhelmingly serious cocaine and methamphetamine drug traffickers, as are almost all federal drug inmates." They add that "even a glance at their listed offenses shows such things as weapons use and, in at least two instances, holding five kilograms of cocaine."
A longer glance reveals that seven of the prisoners possessed guns, but that does not mean they brandished them, let alone fired them. Mere possession is enough to be convicted of using a gun "during and in furtherance of a drug trafficking crime," which triggers a five-year mandatory minimum for the first offense. That jumps to 25 years for subsequent offenses, and the sentences must be served consecutively. The upshot is that a small-time, nonviolent drug dealer who owns a gun can get a stiffer sentence than a rapist or a murderer. Nope, nothing broken there.
If you spend more than a few seconds looking at the latest batch of commutations, you will also see that four of the prisoners (which is indeed "at least two") were convicted of offenses involving more than five kilograms of cocaine, but only one was convicted of possessing that amount. The rest were convicted of conspiring to distribute more than five kilograms. A conspiracy charge does not necessarily indicate that the defendant played an important role in a drug trafficking organization. Telisha Watkins, who received a 20-year mandatory minimum, was convicted of participating in a cocaine conspiracy because she connected a confidential informant with a dealer, even though she never touched the drugs.
In any case, the prisoners to whom Walters and Murray are referring received sentences ranging from 20 years to life and have already served 10 years or more. How long a sentence do they think is appropriate for engaging in consensual transactions involving arbitrarily proscribed intoxicants? I think we know the answer: whatever sentence legislators decide to impose, even if they later change their minds.
To be clear, Walters and Murray do not think there is any reason for members of Congress to consider further changes to federal sentencing rules. After all, they say, the National Association of Assistant U.S. Attorneys opposes sentencing reform. It turns out that federal prosecutors like the tremendous leverage that mandatory minimums give them. Walters and Murray say the ability to threaten defendants who dare to insist on their right to trial with jaw-dropping prison terms is "a crucial tool for driving successful prosecutions" and "critical for taking down violent large-scale criminal organizations." Whether those sentences are just is apparently beside the point.
In case you need further evidence of Walters and Murray's bad faith, they argue that there is no such thing as a nonviolent drug offender because "violence is inherent to drug trafficking." It would be more accurate to say violence is a predictable feature of the black market created by a prohibition policy that Walters and Murray both support. Leaving that point aside, they are saying it does not matter if the particular defendant a judge happens to be sentencing has never hurt a fly; he must pay for the crimes of others in his line of work. Anyway, Walters and Murray say, violence is not limited to "the direct violence of the criminal cartels"; it also includes "the death and destruction, the heroin overdoses, the crashed families, the epidemic impact, of drug use."
In other words, if I sell you heroin, and you die after injecting too much of it at once or (more likely) recklessly consuming it with other depressants, I may as well have murdered you. Likewise, presumably, if I sell you a bottle of whiskey and you die of acute alcohol poisoning after consuming it all in one sitting or from injuries sustained in a drunken car crash. Since Walters and Murray seem to think there is nothing wrong with a criminal justice system built on such false moral equations, they may not be the best people to consult about the fairness of the penalties that legislators pull out of their asses while in the throes of anti-drug hysteria.