The White House recently announced that 58 federal inmates, mostly non-violent drug offenders, would have their sentences shortened through commutation. This brings the total number of commutations during the Barack Obama years to 306, more than any recent administration. And word out of the White House is that there will be more to come during President Obama’s final months in office.
Many conservatives will be initially inclined to see Obama’s commutations as the act of a liberal who is soft on crime. But conservatives should celebrate President Obama’s commutations. In fact, as people who prize liberty and individual rights, and who are skeptical about government power, conservatives need to do a rethink on criminal justice.
It’s becoming clear that something has gone very wrong with the justice system in the United States. Today, the U.S. has the highest incarceration rate in the world. Too many crimes have been federalized, as opposed to being handled more locally by state and local courts. Excessive punishments are being meted out for non-violent crimes because of mandatory sentencing requirements. And it’s dawning on people that the justice system is plagued by the same careerism and corruption that characterize other branches of government.
In his campaign for the presidency Ronald Reagan — my hero — often criticized liberal judges for going soft on lawbreakers, and while he was president, Congress established the United States Sentencing Commission to examine the problem and make recommendations. But in its usual rush to “do something,” Congress preempted the Commission and passed a number of major laws in the 1980s and 1990s imposing mandatory sentencing standards on the federal courts.
Taking reasonable discretion away from judges was a mistake, and it caused a shift in power from judges to prosecutors, who can select and “stack” charges involving mandatory minimums. While judges are appointed or elected to consider both sides of a case, prosecutors are hired to convict. It should trouble conservatives that the government side of the equation has been awarded such disproportionate power, which has clearly led to abuses.
Consider the case of Weldon Angelos, who at age 24 was arrested in Utah for selling marijuana and possessing a firearm. Because of stacked charges with mandatory minimums, Federal Judge Paul Cassell had no choice but to sentence him to 55 years in prison. Judge Cassell has ever since been pleading for a commutation to Angelos’ sentence, pointing out that far worse crimes, such as hijacking, rape, and second-degree murder, have lighter sentences. But the judge, who clerked for Antonin Scalia, was appointed by President George W. Bush, and who favors the death penalty, was powerless in the face of a prosecutor armed with federal mandatory minimum sentences.
Yes, our justice system should be about public safety first. But all too often it is about careerism, government revenue and corruption. Stephanos Bibas, professor of law and criminology at the University of Pennsylvania, reminds us that “the criminal justice system and prisons are big-government institutions. They are often manipulated by special interests such as prison guard’s unions, and they consume huge shares of most states’ budgets.”
Social conservatives should understand the need for criminal justice reform, since we believe that every human life has inherent dignity and value, and we believe in the possibility of redemption. Non-violent offenders can be punished and make restitution while keeping families intact and offenders productive. Economic conservatives should recognize that non-violent offenders are better deployed working in the private sector than incarcerated in expensive government facilities. And libertarians — well, libertarians already get it.
There are many pieces to the justice reform movement, including giving judges more sentencing leeway, eliminating civil asset forfeiture, and prioritizing drug treatment and in-home monitoring of incarceration. But commuting sentences for non-violent offenders that are far in excess of the crime is a great place to start.