The Obama-Holder clemency program: subverting the law while promoting crime

The Obama administration’s plan to enable certain prisoners convicted of drug-related felonies to obtain clemency is, as I argued here, a usurpation of congressional power and is designed to help the Democrats in a trying election year. Andy McCarthy amplifies this objection.

But what about the merits of the new clemency program which applies to prisoners who: (1) have no history of violence, (2) have no ties to criminal organizations or gangs, (3) have a clean prison record, (4) have already served 10 years or more of his sentence and (5) would likely have received a substantially shorter offense if convicted of the same offense today?

One can sympathize with criminals who meet all of these criteria. But only leftists and some libertarians view criminal sentencing issues primarily from the criminal’s perspective. Society’s interests must also be given strong consideration. As Bill Otis says, individuals and communities victimized by the drug trade should be the focus of our concern, not the criminals who do the victimizing.

It is here, I think, that the substantive case for clemency breaks down. According to the Justice Department’s own study cited by Bill Otis, 77 percent of drug offenders will return to crime after their release. Thus, to release them prematurely from legally imposed sentences is virtually to guarantee more crime more quickly.

Do the clemency program’s criteria reduce the odds of recidivism? Perhaps. But a criminal with no history of violence, no known ties to gangs, and a record of okay conduct in prison still presents a risk of committing drug offenses (which are non-violent and not necessarily gang related) upon release. Absent empirical evidence that the risk is insubstantial, society’s interest is in requiring these felons to serve out their terms.

Society’s interest must, of course, be balanced by considerations of fairness. But Congress performed that balancing when it set the sentences in question and later declined to make new, lighter sentences retroactive.

In the end, therefore, we can say this about the Obama-Holder clemency program: it subverts the law by imposing by decree a measure Congress refused to pass under the Constitution’s legislative process; it will promote crime; and it does these things in order to obtain political advantage for Democrats.

To most of us, this is a travesty. To President Obama and Attorney General Holder, it’s a good day’s work.

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