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In Sentencing, Tough Is Not Necessarily Smart

Trump should not take his criminal justice cues from his attorney general.

Barack Obama, who shortened more prison sentences than any other president in U.S. history, has been replaced by a man who views that record of mercy as evidence of dangerous laxity. Donald Trump's criticism of Obama's commutations not only suggests he will be much less inclined to use his clemency power but also casts doubt on the prospects for much-needed federal sentencing reforms that not long ago seemed to be on the verge of passing with bipartisan support.

After a very slow start, Obama ultimately commuted the sentences of 1,715 federal prisoners, more than his 13 most recent predecessors combined. Almost all of the prisoners who received commutations were nonviolent drug offenders, 568 of whom had been sentenced to life.

Many of these prisoners were serving sentences longer than they would have received under current law. Even with the commutations, they will end up spending long stretches behind bars: 20 years instead of life, for example, or 13 years instead of 25.

Trump nevertheless took a dim view of Obama's commutations while running for president. At a rally in Kissimmee, Florida, last August, Trump scornfully held up a bar graph that the White House had cited with pride, comparing Obama's commutations to those of recent presidents.

"Some of these people are bad dudes," Trump said. "These are people that are out; they're walking the streets. Sleep tight, folks."

Trump's pick for attorney general, Sen. Jeff Sessions (R-Ala.), criticized Obama's commutations in even stronger terms, calling them an "unprecedented" and "reckless" abuse of executive power. Sessions, who is expected to be confirmed soon, said Obama was "playing a dangerous game to advance his political ideology."

Like Trump, Sessions conflates drug offenders with violent criminals. As Alabama's attorney general in 1996, he supported a mandatory death penalty for people convicted twice of drug trafficking, which would have been clearly unconstitutional. During his confirmation hearing on January 10, he said he no longer favors that policy. But Sessions still argues that "drug trafficking can in no way be considered a 'non-violent' crime," even when it does not involve violence.

Sessions thus rejects a central point of agreement underlying bipartisan support for sentencing reform: that there is an important distinction between violent criminals and offenders who engage in peaceful activities arbitrarily proscribed by Congress. He was a leading opponent of the Sentencing Reform and Corrections Act, which would have made the shorter crack sentences that Congress approved in 2010 retroactive, reduced various other drug penalties, tightened the criteria for certain enhanced punishments, and broadened the criteria for the "safety valve" that lets some drug offenders escape mandatory minimums.

Sessions himself supported the crack sentencing reforms enacted in 2010, along with every other senator, reflecting a broad recognition that the existing penalties were excessively severe. Yet he has steadfastly opposed extending the benefit of the new rules to current prisoners, whether through legislation or through clemency.

Trump, who ran on a "law and order" platform and at his inauguration last week promised to end the "carnage" caused by "crime and gangs and drugs," seems inclined to take his cues on criminal justice from his attorney general. That would be a mistake, because an indiscriminately punitive approach is not only unjust but inefficient, undermining public safety by wasting resources on imprisoning people who pose no real threat.

Paul Fields, who was included in Obama's final batch of commutations last week, received a sentence of nearly 16 years after police found 256 marijuana plants at his home in Jonesborough, Tennessee. Obama reduced his sentence to 10 years.

It is hard to believe that Fields deserves a 10-year prison sentence for doing something that violated no one's rights, something that is now legal in eight states. It is impossible to believe that forcing him to serve his full sentence would make the rest of us safer. Yet that is what you have to believe if you think federal criminal penalties are fine as they are.

© Copyright 2017 by Creators Syndicate Inc.

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  • adampeart||

    Am I the only one ANNOYED AS FUCK by all of the grammatical errors/typos in today's world of "professional" online journalism?! Regardless of the site I find at least five a day. I expect it (actually accept it) at junk sites like HuffPo and Salon, but it breaks my heart to see it on Reason. Doesn't anyone proofread their shit anymore? Where's the pride!

  • adampeart||

    "Where's the pride?"
    That's what I meant.
    Haha, that's what I get.

  • gaoxiaen||

    I, too, was once a grammar Nazi. Then I realized that there wasn't an edit button.

  • Citizen X||

    +1 Joe'z Law

  • Utilitarian||

    +1

  • Citizen X||

    When everyone is an editor, no one is an editor.

  • gaoxiaen||

    Take away the "drugs" (by legalization) and the "crime and gangs and drugs" problem will dwindle to a manageable size.

  • Robert||

    Dwindle yes, to-a-managageable-size probably not. What the crime culture does is sweep up all illegal activity that's fairly easy for individuals to get into. Legalizing victimless activities will reduce the amount of illegal activity the crime culture can feed on, but won't reduce it by as large a proportion as you think.

  • Billy Bones||

    So, you claim that by removing all sources of revenue for gangs, that gangs would continue their "carnage" just for the hell of it? Gangs are a by-product of prohibition, pure and simple. I will give you the fact that the government is absolutely horrible at legalizing anything, and will continue to incentivize the black market. But that does not change the fact that if we WERE to fully decriminalize drugs, the gang problem would disappear.

  • ant1sthenes||

    Except that there are plenty of profitable crimes with victims which presumably aren't going to be legalized. When you legalize prostitution and drugs, the gang isn't going to say "well, shit, boys, time to hang up our hats and turn in our guns", they're just going to turn to theft, armed robbery, or kidnapping for ransom. Their core competency was never logistics or salesmanship or customer service or anything that would benefit a legitimate business, it was their willingness to use violence in contravention of legal and social norms.

    I'm sure there are some breaking bad cases where prohibition created a temptation for otherwise decent people to get rich doing illegal and sometimes unethical things. But more often I think it just makes it easier for basically shitty people to get rich doing doing illegal and sometimes unethical things.

    TL;DR - quitting smoking doesn't make your cancer go away.

  • Utilitarian||

    I agree that gangs wouldn't completely disappear, but not only is there a lot less money in robbery and kidnapping than there is in drugs, they're also more risky (most drug transactions are violence-free). This reduction in revenue would cause gang membership to shrink over time (years/decades). People who were already part of that social group would be unlikely to leave, but gangs would have a tougher time recruiting new members.

    There are cultural issues that need to be solved, but ending drug prohibition would be a huge step in the right direction.

  • Robert||

    No, criminal culture was around long before prohib'n, viz. Gypsies for example.

  • Diane Merriam||

    Quick note on Gypsies (the Roma). They have a very communal culture. Property just isn't much of a thing for them, so they don't respect it much in others either. That's led to all kinds of discrimination against them as inherently evil. They were explicitly targeted by the Nazis right along with the Jews. That keeps them even further out of "normal" culture.

    Not saying it's ok, just giving a bit of background.

  • Lee Genes||

    Sessions is a piece of shit. End of story.

  • Citizen X||

    He gives pieces of shit a bad name. A piece of shit can be flushed away and never thought of again, and will never take actions that result in nonviolent persons having their doors kicked down in the middle of the night.

  • Utilitarian||

    +1

  • Swiss Servator||

    Barack Obama, who shortened more prison sentences than any other president in U.S. history

    Barrack Hussein Obama, mmmm mmmm mmm mmm?

    8 years - no rescheduling of cannabis, no significant change in federal laws...and now, it appears no immediate hope for any of that now.

    Crap.

  • Lee Genes||

    This. He took no real action to change the structure of federal sentencing where it was available to him. Instead, he took the route that would risk the least damage to his political legacy and generate the least organized opposition.

  • Citizen X||

    ...while maximizing the appearance of compassion and magnanimity. Pure mediagenic spectacle to salve the event horizon of a singular narcissism.

  • prolefeed||

    received a sentence of nearly 16 years after police found 256 marijuana plants at his home in Jonesborough, Tennessee. Obama reduced his sentence to 10 years.

    It is hard to believe that Fields deserves a 10-year prison sentence for doing something that violated no one's rights, something that is now legal in eight states.

    So, Barack "Choom Gang" Obama -- someone who smoked weed bought from guys like this all the time in college -- decided this non-violent Deadhead guy (who has already spent 6.5 years in prison), deserved to spend another 3.5 years in prison, rather than 9.5 years? WTF?

  • Bee Tagger||

    Yeah, but smart isn't necessarily tough!

  • Robert||

    True, but very conventional. Most people conflate illegal activity, victimful & victimless, as "street crime". They know it's something they don't want in their neighborhoods. It would be very unusual for someone elected to political office to break out of the status quo thinking on this.

  • Lawman45||

    Tough sentencing ACCOMPLISHES one thing. It reduces the crimes that THESE offenders would inflict on their communities if they were on the streets. Every day they are IN, those who are OUT are safe from their predation. It is hard to count the number of crimes avoided but given that these folks commit 10 - 50 every day they are out, it is surely sufficient SAFETY for their communities to justify their continued incarceration. Every killer arrested in my city last year, had he received a long sentence for earlier convictions, would not have been able to commit his crime. 130 +/- murders not committed (at least not by those murders). Is that worth the occasional "too much"? Sure it is.

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