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Hard on Crime

A couple months back, when I was in one of my ruminative moods (read:  up against a deadline for a blog post, and figuring I'd bullshit my way through it), I suggested that having a fair prosecutor was more important than having a fair judge, simply because of the immense amount of discretion a prosecutor has over whether and what to charge, and what to allow a defendant to plead to.  As this recent NY Times article notes (h/t to SL&P), that hasn't escaped the notice of others, especially with regard to Federal prosecutors.  The "others" in this case carries a little more weight than I do.  He's Federal District Judge John Gleeson, who recently was required to hand out a five-year mandatory minimum sentence to a defendant who'd sold just barely over the 28-gram amount of crack that triggers the minimum, despite Gleeson's characterization of the defendant as "a young, small-time, street-level drug dealer's assistant."

The blame for this, in Gleeson's view, is a Justice Department which uses the mandatory minimums, which were intended to apply to drug kingpins and midlevel dealers, to just about everybody caught with the requisite amount.  Last year, about 74% of the defendants charged with trafficking in crack faced the mandatory minimum sentence, but only 5% of them led or managed a drug business.  The complaint about overcharging was echoed by other judges, one of whom wrote in a ruling a few weeks ago, "Prosecutors run our federal justice system today.  Judges play a subordinate role -- necessary yes, but subordinate nonetheless. Defense counsel take what they can get."  Gleeson, who could hardly be labeled soft on crime -- he led the prosecution team which got Mafioso John Gotti a life prison sentence -- urged the Justice Department to adopt a policy of seeking mandatory minimums "only in cases against leaders and managers of drug enterprises." 

Well, that could happen, or not.  Despite the Obama administration's talk of "thinking about drugs more as a public health problem" and shifting resources from enforcement to treatment, the Drug Czar's budget, released last week, repeated the same 60/40 disparity toward enforcement as the Bush administration had employed, earning criticism from LEAP, a group of police officers, judges, and former prosecutors who've campaigned against the prohibitionist drug policy approach.  This parallels the administration's approach to marijuana, of all things:  marijuana arrests surged to record highs -- pun fully intended -- in 2009 and 2010, reaching 850,000, more than half of all drug arrests.  And the antipathy toward the demon weed has even reached into the area of medical marijuana:   although nine states allow marijuana to be used for medical purposes, the Feds have conducted over 100 raids in those states, leading to at least 61 indictments, and have closed down dozens of distributors which had been operating legally under state law.

This leads to my breaking one of my firm rules for this blog:  no discussion of politics.  I've often been critical of the so-called "liberal" wing of the Supreme Court, finding them falling far short of the icons of my younger days, judges like Brennan and Blackmun and Marshall.  Moving the focus from the judicial to the executive branch, while Barack Obama hasn't been the worst president for criminal and civil liberties in my lifetime -- there's always Tricky Dick Nixon to kick around -- he's running an increasingly close second.  In addition to his incomprehensible record on drug enforcement, his record of granting pardons -- only 23 to date -- is among the most parsimonious in history.  (Sure, William Henry Harrison didn't grant any, but his catching cold at his inaugural and dying from pneumonia a month after taking office probably was a factor in that.)  I was appalled when President George W. Bush had Jose Padilla, an American citizen, arrested in a Chicago airport and held for years without trial in military custody.  Obama's signing of the National Defense Authorization Act earlier this year codifies that power, granting the military the authority to arrest and indefinitely detain anyone, even citizens, suspected of assisting terrorists.  Obama has even done something Bush never did:  ordered the killing of a US citizen abroad who was deemed a terrorist, without judicial review or act of Congress granting him that power.

In light of all that, I have a hard time quibbling with the observation of a grandmother who was attending one of the Occupy Wall Street rallies last fall:  "Obama has been the biggest disappointment of my life, and I've been married twice."

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