Maybe we really are the Stupid Party. It is bad enough to jump on the Left’s anti-incarceration bandwagon, giving credence to the flat-out lie that the criminal justice system is inherently racist. But only Republicans could pick the height of a heroin epidemic as the perfect moment to join the jihad against the federal narcotics laws.
The suppression of crime over the last generation-plus has been one of the greatest boons for social and economic prosperity in American history. Among its chief beneficiaries have been minority communities. By wide margins, it is they who are most victimized by crime, particularly violent crime – notwithstanding Washington’s perverse infatuation with the criminals who beleaguer them.
Alas, the battle against crime is a victim of its own success. If you are a 30-something, you may qualify to be a Beltway policy expert – maybe even lie to the country for a living in the Obama foreign policy or speechwriting shop. But you have no memory of what life was like in this country as recently as the 1960s and ‘70s. It was an era of rampant crime, particularly in big cities like New York – where I grew up before the danger zone memorialized in Fort Apache the Bronx was revitalized into something more closely resembling Little House on the Prairie.
You may not realize that the anti-incarceration theories with which the Left sees little risk in dabbling were all the rage back in those bad old days.
One of the more notorious criminals of that era was the “Weatherman” terrorist Bill Ayers. By an unfortunate quirk of fate, Ayers, who should have been sentenced to decades in prison, emerged unscathed – to borrow his words, “guilty as sin, free as a bird” – because of law-enforcement violations that caused his case to be dismissed. In a testament to American cultural decline, Ayers is now a respected academic – which tells you everything you need to know about how our universities became one big safe-space-seeking, free-speech-suffocating, trigger-warning zone.
In 1997, as crime was plummeting thanks to an intelligence-based revolution in policing and Reagan-era reforms, including enhanced sentencing for drug-trafficking and other serious felonies, Ayers wrote a book called A Kind and Just Parent. As Stanley Kurtz explains, Ayers’ polemic focused on Chicago’s juvenile courts but broadly blamed American society for higher crime rates in major cities, comparing our criminal justice system to the mass detention of blacks under South African apartheid. A young Illinois state senator gushed that Ayers had provided “a searing and timely account.” That senator’s name was Barack Obama.
Who knew that the party of Ronald Reagan would begin to sound like the party of Bill Ayers when it comes to crime, which Reagan did so much to roll back?
The bill that GOP leadership is currently joining with Democrats to try to ram through Congress is being masqueraded as sentencing “reform.” In fact, it should be called the “Early Release for Sociopaths Certain to Recidivate Act.” And there is no rational reason for the support it has gotten from top Republicans … except its appeal to libertarian donors, who believe we should not have laws against narcotics trafficking. Hence, one of the two major falsehoods behind the anti-incarceration push: The nation’s jails overflow with “non-violent drug offenders.”
This claim, which leading Republicans now join President Obama in peddling, is preposterous. As Heather Mac Donald has shown, drug offenders make up well under a fifth of the state prison population (which would be unaffected by the federal legislation, notwithstanding Washington’s reliance on a fairy-tale depiction of it). The lion’s share of state convicts are violent felons (54 percent) and property offenders (19 percent). In recent congressional testimony in opposition to the “reform” bill, Mac Donald observed (citing a 2011 study by researchers of the Harvard School of Public Health and UCLA School of Public Health): “The size of America’s prison population is a function of our violent crime rate. The U.S. homicide rate is seven times higher than the combined rate of 21 Western nations plus Japan.”
To be sure, drug offenders do constitute a much larger percentage of the federal prison population, about half. It is here, though, that mythology kicks into high gear. To begin with, federal prisons incarcerate only 13 percent of the nation’s inmates, so we are dealing with a far smaller criminal population. More significantly, it is generally a serious breed of criminal.
Because federal and state law-enforcement have concurrent jurisdiction over drug offenses, the division of labor has the federal system handling most major narcotics trafficking offenses. Contrary to Beltway lore, there are no unlucky ne’er-do-wells languishing in federal prison because they got caught smoking a joint on the campus green.
As former federal drug czars Bill Bennett and John Walters explain, a whopping “99.5 percent of those incarcerated for [federal] drug convictions are guilty of serious drug trafficking offenses.” These are real felons – drug importers and distributors, not mere users. Drug trafficking, moreover, is an inherently violent crime. Indeed, it is well-settled federal law that firearms and other weapons so commonly seized in drug investigations are admissible evidence in court because “guns are tools of the trade” of narcotics trafficking. Plus, as Bennett and Walters elaborate, drug trafficking felons have an extraordinarily high recidivism rate – “77 percent reoffend within five years of release, with 25 percent committing violent offenses.”
There is no quantifying how many crimes have been prevented, how many innocent people saved from being victimized, by virtue of keeping these serious criminals behind bars.
Furthermore, it is simply not true that federal prisons are teeming with inmates. Senator Jeff Sessions (R., Ala.), a stalwart opponent of the “reform” proposal, points out that under President Obama, the number of prisoners has plummeted to its lowest level in a decade. Drug prosecutions have fallen by over a fifth since 2011, and the federal prison population has decreased by over 20,000 inmates – nearly ten percent. This population reduction is slated to continue with the release of another 10,000 over the next year, which will bring it to its lowest level since 2004.
The Sentencing Commission recently ordered the release of 46,276 federal drug trafficking felons from federal prison, including those who carried semi-automatic weapons, participated in international heroin smuggling rings, and have violent criminal histories. And just last year, the Obama Administration released 90,000 criminal illegal aliens from custody.
Mind you, this is happening during an alarming surge in drug use, particularly heroin. Bennett and Walters note that “our nation is enduring a 440 percent increase over the past seven years in heroin overdose deaths.” Why on earth would we swing the jailhouse door open for drug traffickers during a drug abuse crisis? Why, in addition, would Republicans decide that now is a good time to make drastic reductions in the penalties for career criminals?
And why the wrongheaded condemnation of mandatory minimum sentencing laws? As I have recounted, mandatory minimums were threaded into federal criminal statutes in the 1980s because judges were giving slaps on the wrist to felons. The point was to allow the people, through their representatives in Congress, to mandate minimum jail sentences for certain serious crimes – generally involving firearms, violence, or significant amounts of narcotics. Simply stated, mandatory minimums enable the public, rather than the judges, to determine appropriate jail terms for conduct that besieges the public.
Which brings us to the second big lie behind the anti-incarceration movement: the claim that the system is racist.
For years, the Left’s agitators have maintained that the explanation for the over-representation by African Americans in the prison population is inherent bias on the part of police and the judicial system. They dare naysayers to counter with the uncomfortable, politically incorrect fact that the criminal element in the black community commits offenses at a higher rate than other groups (not to mention – no, never mention – that the victims of its crimes are disproportionately black).
Before more Republicans queue up behind the agitators – in the vain hope that they will make political inroads with a solid Democratic constituency by siding with the predators rather than the prey – a little common sense is in order.
The nation’s police forces are more integrated today than they have ever been. More to the point: Outside of academe, can you think of a single institution in American society that is more left-leaning, more ostentatiously “progressive,” than the American legal profession? You know, the people who staff the courts, prosecutors’ offices, and the defense bar. The people who conjure up voodoo like “disparate impact” theory in order to invent discrimination where there is none? The people who are the prime movers of sentencing “reform”?
It is the most laughable suggestion ever to be taken seriously. Not surprisingly, when the numbers are inconveniently crunched, it is laughable: as Heather Mac Donald noted in her aforementioned testimony, “A 1994 Justice Department survey of felony cases from the country’s 75 largest urban areas found that blacks actually had a lower chance of prosecution following a felony than whites.”
Yes, it turned out that black defendants who were prosecuted were more likely to be sent to prison. But that was hardly because judges were biased. The broad sentencing discretion that judges once enjoyed is now cabined by color-blind guidelines that calculate sentences based on the type of crime committed and the defendant’s prior record. African Americans were more likely to face incarceration because of the gravity of the offense of conviction and because their criminal histories were more extensive. And anyone who has spent any appreciable time in the criminal justice system – I was a prosecutor for nearly 20 years – knows that lawyers and judges routinely engage in fictional “fact-pleading” when negotiating guilty pleas in order to circumvent guidelines provisions that would enhance sentences if honestly applied.
The root causes of crime are cultural. Crime is not caused by enforcement of the law; to the contrary, it is discouraged and thus diminished by enforcement of the law. And it is crime, not the incarceration of criminals, that truly harms communities. Until we honestly come to grips with these facts, we will not address what actually ails us.
Our ingenious constitutional system provides a perfectly adequate remedy for the occasional, inevitable case in which the punishment imposed far outstrips the seriousness of a crime. It is the pardon power. The president has the unreviewable authority to pardon any federal offense and commute any federal sentence.
Barack Obama is stoking a false narrative of mass-incarceration driven by racism. He has been doing it for over two decades, since his days of applauding the anti-incarceration crusade of his friend Bill Ayers, the unrepentant former terrorist. Now, as president, he is doing it in an effort to induce Congress to do his desired dirty work: the mass-release of hardened criminals.
It might be popular at the New York Times editorial board, but it would earn only the contempt of Americans who would have to live with surging crime, drug addiction, and fear. If Obama insists on doing this, let him be the one to pardon the criminals and let Democrats bear the political fall-out. Republicans should resist being part of a dangerous charade. They should remain the party of Reagan, the champions of law and order.