Wednesday, May 7, 2014

So, Who Hit Sen. Hatch With a Stupid Stick?

On, or about May 6, Senator Orrin Hatch (R-Utah) delivered these words (below) in the United States Senate. We provide annotations in red.

"Last week, the Justice Department announced a plan to extend clemency consideration to a large new class of drug offenders. Both the New York Times and the Washington Post estimate that the Department’s new guidelines will potentially apply to tens of thousands of cases, with clemency likely to be granted to perhaps thousands of current federal inmates. A mere drop in the bucket, given the very high rate of incarceration in this country, and in our federal prison system.

This surprise announcement by the Administration The announcement was only a "surprise" to those not paying attention to this topic. It was, in fact, highly anticipated and, in the view of many, long over due marks a worrying shift away from the longstanding norm requiring individualized determinations based on the particularly compelling circumstances of specific cases. There is no such norm "requiring" any such thing. Or, if we are going to abuse the language that way, we should note that there is an equally long-standing norm of group pardons (or amnesties). Any suggestion otherwise can only be the by-product of inexcusable ignorance or the disturbing desire to mislead. Instead, the Justice Department has laid the groundwork for mass clemency based on a few widely-shared and broad criteria. As has been done many, many times before, across 225 years.

Now of course, the Constitution gives the President the power to grant clemency in individual cases. A novel interpretation which has never been adopted by any federal court in the history of the United States. No one disputes this authority. It has been exercised by presidents throughout our nation’s history. And it is properly used on a limited, case-by-case basis to ameliorate specific instances of injustice experienced by particular individuals. Or, at least, says Hatch - in direct opposition to constitutional law and American history. 

By contrast, it is the rightful province of the legislative branch to establish broader sentencing policy through duly enacted federal statute. Sure. And it is the rightful province of presidents to veto laws, if they appear unjust / unwise. If such vetoes are overridden, it is the rightful province of presidents to employ the pardon power, if necessary. Fourth graders all over this great Nation know this as "separation of powers" and "checks and balances." It is what we do here in America. We did not fight a Revolution against a monarch in order to make Congress, much less Hatch, the new monarch. There is sentencing law on the books and Congress periodically revisits and revises this sentencing policy. Yes, but of course, "politics" and elections often distract Congress and justice can be delayed for years, if not decades (reason 24 for the pardon power). Hatch should note that Congress did, in fact, change the sentencing laws, DECADES, after the fact and - more importantly - because both parties in both chambers considered the old laws ineffective, if not outright unfair. Which is to say, even Congress, every now and then, can see its own extremely poor decision making. But, meanwhile, until it does, there is nothing whatsoever in the Constitution which suggests the other two branches have to fall in the same pits. But in our constitutional system, changing the law requires legislative action by Congress. Yes, we are all aware that Congress passes laws. There is no reason whatsoever to suggest President Obama intends to limit Congress' power to do what it is supposed to do. 

In the face of this most basic constitutional requirement, the President has apparently instead decided to use—or, rather, abuse—the clemency power in an attempt to rewrite sentencing law unilaterally. Very poetic, and startling. But, of course, the president is doing no such thing. President Obama is addressing persons already convicted under the law, old law, law now rejected, even by Congress. Furthermore, he is addressing an extremely small fraction of persons sentenced under such laws. Meanwhile, Congress is clearly free to do (or not do) what it wants. His invocation of clemency is merely a fig leaf to disguise a blatant effort to usurp legislative authority. Senator Hatch's faulty understanding of constitutional law, American history and checks and balances is half of a fig leaf to disguise his partisan belligerence and apparent need to grandstand before an election. 

The President’s clemency power in not a vehicle by which the executive branch may effectively revise or discard lawful statutes with which the President disagrees. Says ... who? Thomas Jefferson promised to pardon all persons convicted under the Alien Sedition Acts (which imprisoned persons who were merely critical of the government). When elected, he did what he said he was going to do. Woodrow Wilson vetoed the Volstead Act (National Prohibition Law) because he thought it was a poor excuse for legislation. Congress overrode his veto so he pardoned offenders of the act right and left. Abraham Lincoln and Gerald Ford pardons many THOUSANDS of persons guilty of violating "lawful statutes." Alexander Hamilton, in the Federalist Papers, famously noted that the criminal laws of nations have an almost natural tendency toward over-severity. Not exempting Congress from his analysis, he argued there should be "easy access" to mercy in OUR system. It makes one wonder: What planet is Sen. Hatch on anyway? But that is precisely what President Obama and his Justice Department have promised to do.

The amount of time that entire classes of drug offenders spend in jail will no longer be based on uniform sentencing law passed by Congress and administered by the federal judiciary. "Uniform sentencing laws" can certainly be "uniformly" bad. Instead, it will be determined by the President’s personal views of “justice,” As any intelligent person is aware, the pardon power has always been based on the personal views of those administering it - including presidents, pardon attorneys, attorneys general, deputy attorneys general, members of the FBI, prison officials, etc. The saving grace - so to speak - is that laws passed by members of Congress - like Hatch - are also based on the personal views of members of Congress. So, where are we? by the Attorney General’s subjective notions of what he considers “fair,” and by some Justice Department bureaucrat’s sense of “proportionality.” In fact, President Obama's stated guidelines represent one of the most clear, concise, reasonable, systematic and limiting courses of action relative to the pardon power in Hatch's lifetime. For him to pretend otherwise is sad. Hatch might wish there were more "specifics" - so he could fog up the world with criticisms of minutia. But the guidelines announced by the President are, again, clearly reasonable (leaving Hatch only room to complain about a word here and there) and, if followed in good faith, represent an amazingly dramatic reduction in the kind of subjectivity Hatch feigns to complain about. 

Such a result turns our system of government on its head. But not nearly as much as Hatch's foolish suggestion that group pardons are suddenly unconstitutional. And it represents an abdication of the President’s core constitutional duty. The phrase "core constitutional duty" appears nowhere in the Constitution. Perhaps Hatch sees that in a penumbra, of the Federalist Papers. Instead of faithfully executing the law, President Obama is simply seeking to enforce his personal ideological preferences. It is precisely this sort of unchecked and unaccountable rule that our nation’s founders sought to prevent. Gong! It was the Founders who precisely gave the president - explicitly - the uncheckable power to pardon. They were wise enough to know, one day, Congressmen like Hatch would come along, despise checks and balances and try to impose their personal ideological views on everyone else. 

Mme. President, the Obama Administration’s unilateral action on drug sentencing is especially troubling since Congress is actively considering a number of potential sentencing reforms. Which, again, may take decades. Indeed, an ideologically diverse, bipartisan group of Senators have demonstrated they are eager to legislate on this issue. Wow. They have demonstrated they are eager to possibly act! That pretty much says it all, does it not? In Hatch's mind, that is really something! Meanwhile, everyone suffering under the decision making of an equally eager previous Congresses can ... just wait, suffer! Several sentencing reform bills have been drafted and introduced. Legislation has been considered and reported by the Judiciary Committee. And the vast majority of legislative proposals which reach this stage result in ... nothing. 

Although a President should never expect to get every single idea he wants through the legislative process, bipartisan agreement here seems well within reach—especially if the Administration chose to focus on working with Congress to change the law rather than acting alone to undermine it. So, having done nothing for decades, the President should stop all forward movement having been notified, by Hatch (who is freakishly deficient in understanding of constitutional law and history) that now, at long last, some members of Congress are eager to, maybe, do something! Yet even in an area where constructive action is achievable, the President has decided to go it alone, and in doing so he violates the most basic constitutional principles he once taught to his law school students. The President very clearly will not be doing much of anything "alone." The imagery here is patently stupid. It sounds like the kind of nonsense that would come from a grandstanding Congressman who would rather impress those as ignorant as they are eager than actually address serious issues of criminal justice that have been sitting right under his nose for decades! 

Mme. President, examples of such executive abuse have become all too common under this Administration, especially since President Obama announced his new “pen and phone” strategy of unilateral action specifically designed to bypass Congress and evade constitutional restraints ..."

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