Saturday, August 24, 2013

Holder (Obama): Loud. But Outside the Ring.

Shud - dup !
Passionate, sincere-sounding rhetorical efforts clearly predestined to utter and complete failure can be entertaining. The producers of professional wrestling understand this. Their combatants stand high on the ropes, angrily shaking their fists in the air as they tell thousands of people around them to “Shud-dup!” These exercises in mass communication never succeed, to any degree, at any level. Indeed, they guarantee a louder, more disrespectful audience. It is impressive, but humorous, because the result is so predictably unimpressive.

Attorney General Eric Holder’s recent memo to U.S. attorneys (dated August 12, 2013) has a similar feel. The three-page document, an exhibit in what some hope is a “major shift” in DOJ policy, explains that the exercise of “discretion” in charging decisions is “among the most important duties of a federal prosecutor.” Right away, I wondered, “Is there really a prosecutor somewhere unaware of this?” Holder admonishes U.S. attorneys to evaluate factors in sentencing in a “thoughtful and reasoned manner.” He reminds them sentences should be the product of “individualized assessments” and should “fairly” represent criminal conduct. By the time he instructs them to be “candid” and “accurately calculate” sentencing ranges, one suspects something like disrespect, low-regard, or – at the very least – documented, empirical assessment of poor job performance. One could almost imagine the memo’s author on the top rope, calling millions of people a “nation of cowards”!

But, alas, Holder identifies his real concern: mandatory minimum and recidivist enhancements statutes have “resulted in unduly harsh sentences and perceived or actual disparities” … not unthinking, irrational, unfair, sneaky prosecutors and their faulty calculations! Whew!

Holder = No Shawn Michaels
Then, the “finisher”: Holder directs prosecutors to “decline” focus on the quantity of drugs associated with defendants (for purposes of considering a mandatory minimum sentence) if they 1) were not violent 2) did not possess a weapon 3) did not traffic with minors 4) did not cause death or injury 5) were not an “organizer, leader, manager of supervisor” 6) had no “significant” ties to large-scale drug operations and 7) had no “significant” criminal history. At the time of sentencing, there must be “sufficient” information to determine defendants meet all of these qualifications. In professional wrestling terms, this shout-out may have reached just beyond the second row.


First, there is little doubt that few defendants will meet all of these qualifications. Second, even if they do (or might), "sufficient" and timely information can be ... shall we say ... well within the realm of manipulation by those with ill intent.

But, more importantly, there are literally thousands of federal prisoners who have already been sentenced under mandatory minimum sentence laws which both parties in both houses of Congress have since rejected as unsound, if not unfair. If these prisoners had been sentenced under current law, they wouldn’t even be in prison, and we would be saving millions of dollars – potential savings increasingly of interest to both conservatives and liberals. Holder and his “manager” (President Obama) have complained loudly, in no uncertain terms, about the old laws, for years, often super-charging their remarks with blunt accusations of racism. But, all told, their efforts to actually address their concerns amount to little more than awkward (if not inappropriate and counterproductive) public posturing re Genarlow Wilson, the “Jena Six,” Henry Louis Gates Jr., Trayvon Martin … oh, and Scooter Libby!

Stone Cold Comments on Prohibition
It doesn’t have to be this way. Consider “Whirlwind” Woodrow Wilson. When Congress sent him the Volstead Act, he deemed it poor policy and body slammed it with a veto. Congress bounced right back off the ropes with an override. Did Wilson leave the arena? Or, attempt to “refine” sentencing calculations? No. He went right back into the ring with Congress, pardoning persons who violated the Act right and left. Love him or hate him, Wilson had the courage of his convictions and felt little need to posture, “dialogue,” triangulate, save “political capital” or manicure his “legacy.”

 The clearly appropriate device to systematically address the many, young, first-time, non-violent drug offenders, with excellent prison records sentenced under the rejected laws is the pardon power. But, despite rhetoric about injustice and more fuzzy promises of hope and change, Obama has been among the least merciful presidents in history. Indeed, his 23 first-term pardons represent the lowest for any term since “Gorgeous” George Washington’s first. Why, Franklin “Devastator” Roosevelt granted more pardons in just three days, following the Normandy Invasion - presumably, when he was fairly “busy.” Even “Hacksaw” Dick Nixon granted 1 in every 15 requests for commutation of sentence. President Obama has granted 1 out of 8,126.

No Mercy, for Flair, or Anyone Else
In the Federalist papers, Alexander Hamilton observed criminal codes have a natural tendency toward over-severity. (Does anyone seriously doubt this?) For this reason, Hamilton argued there should be “easy access” (yes, you read that right, “easy access”) to mercy. But, if anything is clear, it is that nothing is “easy” about mercy when it comes to Obama.

The Founding Fathers saw the pardon power as a necessary check and balance in a system of separated powers. They assumed Congress and the judiciary are not perfect. Laws can be vague, overly broad, misinterpreted and/or misapplied. The intent behind them can be completely lost. The president is supposed to be an active participant in institutional approximation of justice, not an irrelevant bystander. Mr. Holder and President Obama should consider paying less attention to the crowd and climbing into the ring, where the real battle is.

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