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Ordered Liberty

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 disparity 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.

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Top Rated Comments   
I remember this as well.

Hey, it must be a great gig, to create a problem then spend your life living off claiming to want to solve it.
19 weeks ago
19 weeks ago Link To Comment
Correct me if I'm wrong, but here's what I remember about the crack sentencing disparity. For whatever reason crack use was associated with more, and more violent, crime, and the crime was concentrated in the black community. So there was a fairly widespread call for harsher sentencing to bring the problem under control. Much of the impetus for the sterner sentences came from black lawmakers. Inevitably, as soon as all that was forgotten, the differences in sentencing were perceived as a sign of racism.
19 weeks ago
19 weeks ago Link To Comment
Absolutely! While I agree that government has no right to tell anybody what they may or may not ingest, the Resident does not have the authority to keep changing the rules as his whims dictate.
When will Congress grow a pair and impeach this criminal who inhabits the White House?
19 weeks ago
19 weeks ago Link To Comment
All Comments   (26)
All Comments   (26)
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18 weeks ago
18 weeks ago Link To Comment
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18 weeks ago
18 weeks ago Link To Comment
Let all the non-violent non-criminal prisoners go home to be with their families. To anyone who still wants to keep them locked up - you stink!
18 weeks ago
18 weeks ago Link To Comment
Just as the weakness exhibited by the Obama administration, around the world, has emboldened the Russians and Chinese to new aggressiveness, so has the weakness exhibited by Republicans, to this administration's lawlessness, emboldened Obama to push his lawlessness to new heights.
18 weeks ago
18 weeks ago Link To Comment
In 2010 the Fair Sentencing Act was signed into law. It reduced the severe sentencing discrepancies between powder and crack cocaine. And just days ago, the U.S. Sentencing Commission voted to revise its guidelines, reducing the sentences meted out for most Federal drug offenses.

There are thousands of inmates serving sentences under the old laws and guidelines who would have served their time by now if, at the time of their conviction, they had been sentenced under the new laws. It's understandable that inmates who fit this description would seek clemency from the government. The justice department is merely gearing up for the clemency applications these changes in the law were bound to create. And whether McCarthy is willing to admit it or not, a Republican AG would be doing the same thing as AG Holder is doing if the circumstances were the same.

Congress and the U.S. Sentencing Commission have taken steps to correct the injustice of unduly harsh crack cocaine sentencing. Granting clemency to those inmates whose time served meets or exceeds the new sentencing guidelines is just another step in correcting the injustice.

I'm taken aback by the fundamental dishonesty of this article. Note to self, don't trust anything written by Andrew McCarthy.
18 weeks ago
18 weeks ago Link To Comment
got to free as much of his posse as possible before he makes his final coup attempt on our government. drug dealers are probably real familiar w/ weapons and will show no compassion when using same against those they have been taught to hate.

itsacomingboyz-lock&load.

18 weeks ago
18 weeks ago Link To Comment
1.
What might the correlation drug offenders be with access to and use of illegal guns? How many of the convictions in question were products of plea agreements that pared down charges that had originally included illegal weapons?
2.
What are the chances any released convict has of making it legitimately in a competitive employment market once released into the community- conversely, what are the odds they'd recommit? What are the odds that as a whole the early released are going to heed the plethora of new gun laws being pushed by the same progressives who suddenly revert to compassion when considering policy pertaining to those with criminal records?
3.
What is the real aim when they propose to prematurely integrate violent street thugs into communities that the politicians are moving to disarm in order to protect "the children"? A tiny step backward to consider the bigger picture makes this not make sense- neither does the argument of budget considerations when moving to release convicts when one stops to reflect on the spending habits and waste of the usurpers.

This is yet another volley in the progressive's war against law abiding taxpaying citizens. Convicts amount to nothing more than another piece in their arsenal.... likely meant to ultimately perpetuate more demand for a police state when they commit new crimes after release.
18 weeks ago
18 weeks ago Link To Comment
There were a lot of cows that sure could have used some Presidential clemency before the Domestic Terrorist al BLM SS ran them to exhaustion with their helicopters and then buried them alive.
19 weeks ago
19 weeks ago Link To Comment
Ah. He's recruiting.
19 weeks ago
19 weeks ago Link To Comment
PS- though strongly against 'drug laws'- they were created to fund political gangs, and have corrupted every Tier 1 banking and political system on the planet (crime institutionalized as the 1961 UN Convention)- nonetheless, I do appreciate your explaining the general difference in focus of federal and state efforts: distribution vs possession. Makes sense, even if it's destroyed all Constitutional principle. Thanks.
19 weeks ago
19 weeks ago Link To Comment
"So it simply isn’t true that thousands of people are languishing in federal prison simply for drug possession or addiction."

Hmmmmm........getting caught with a joint in a National Park?? Driving in from Mexico with that lost joint under the seat?

Get real....of course these people exist...
19 weeks ago
19 weeks ago Link To Comment
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