The recent commutation by President Obama of eight lengthy individual sentences for drug abuse is a tiny but significant gesture, as America’s long indulgence, spiked intermittently into passionate support, for draconian hypocrisy in its failed War on Drugs yields grudgingly to the forces of reason and decency. This follows the reduction in the disparity of sentences for crack as opposed to powder cocaine from 100 to one to 18 to one. There are a number of reasons for this change, but the principal one, apart from the absurd starting imbalance, is that the cocaine-using middle-class and university white people are powder customers, and the generally poorer African Americans tend to be crack users. The first black president and attorney general in U.S. history were not impetuous in their haste to make this change, and 18 to one is still an unsupportable discrimination.
Various states, with the encouragement of a handful of more creative public-policy thinkers, such as Newt Gingrich (who despite his temperamental unsuitability for high public office is an original mind at times), have released significant numbers of nonviolent offenders because of budgetary restraints and the hideous expense of the custodial system. There is a state-supreme-court mandate in California to reduce prison overcrowding, which has reached proportions of deemed unconstitutional inhumanity. Unfortunately, it is practically impossible to discern much sense of traditional aspiration for reform, of the kind that fired the minds and ambitions of great statesmen of the past, not just ostensible radicals like William Jennings Bryan or even Eugene V. Debs, and the British Shaftesbury, Bright, and Cobden, but such great and sometimes apparently conservative officeholders as the Roosevelts, Wilson, Disraeli, Gladstone, Lloyd George, and Churchill. They were all motivated by companion desires to preserve and strengthen the societies in which they lived, but to make them better and fairer. Little of this spirit remains in most countries, and practically none in the United States, where all politics is money: Members of the Congress represent the leading pecuniary interests in their states or districts and presidential candidates raise a billion dollars each so that mighty computer programs and advertising blitzes can fight each other for the heart and mind of an ever more disappointed, cynical, and under-served electorate.
Jim Webb, a thoughtful former Democratic U.S. senator from Virginia, lamented that the U.S. has six to twelve times as many incarcerated people as its nearest comparable, prosperous democracies (Australia, Canada, France, Germany, Japan, and the United Kingdom), and that it has 48 million designated felons. Even if the large number of those who are lumbered with distant and unstigmatizing offenses, such as disorderly conduct or a failed breathalyzer many years ago (though the American reciprocal-enforcement system is apt to keep them out of cooperating foreign countries, such as Canada), are subtracted, that still leaves about 20 percent of adult American males as felons. This is preposterous. Senator Webb said there were three possible explanations for this: Those other countries are less concerned with crime, which is bunk; or Americans are uniquely tempted by and addicted to crime, which is also bunk; or there is something fundamentally amiss in the U.S. criminal-justice system (bingo). Webb promised, in 2009, a blue-ribbon commission of inquiry and recommendation, but he did not seek reelection to the Senate, and after the usual flutter of attention, the whole idea just vanished into the ether.
The real problem is that American prosecutors, as I have had occasion to write here before, terrorize the entire country with impunity. They win 99.5 percent of their cases, 97 percent without a trial (as against much lower success rates in Canada and the U.K.). The plea-bargain system has been misshapen into the extortion or subornation of incriminating perjury in exchange for immunities, including from charges of perjury. And whatever liberties the prosecutors take are never punished. This occurs not only in such instances as the infamous Thompson case, in which a penniless and simple African American sat on death row for 14 years because prosecutors suppressed exculpatory evidence, and the Supreme Court overturned a large damages award in the innocent man’s favor when he was cleared because prosecutors enjoyed an absolute immunity other than from the local bar, whose sanctions are only professional. The seven-term U.S. senator Ted Stevens of Alaska was convicted on the basis of what was found to be gross prosecutorial misconduct, lost his bid for an eighth consecutive election by only 2,000 votes, and only then was exonerated. There was no sanction except excoriation for the prosecutors (though one of them committed suicide).
No serious analysis can sustain the conviction of Lewis “Scooter” Libby, former chief of staff to Vice President Dick Cheney, and his sentence was commuted, but he was convicted in the relentless operation of the American criminal-justice system, whose conviction rate is as high (though the sentences are not as severe) as that of the French Committee of Public Safety that produced the Terror of 1793–94. But at least the entire Committee, led by Maximilien Robespierre (except for the war minister, Carnot), and their prosecutor, Fouquier-Tinville (who inevitably claimed only to be doing his job), concluded this macabre chapter of French history by themselves being executed on a guillotine raised to a new height and moved for the purpose to the most frequented square in Paris. No one is asking for that, but some had dared to hope that the assault on Stevens and Libby, striking so close to the highest eminences in Congress and the administration, would rouse some sense of self-preservation among elected officials opposite this rogue state-within-a-state that the prosecutocracy has become. Robespierre was brought down when he attacked the epochally cunning and insidious master of the underworld and long-serving police minister, Joseph Fouché. The American terror, comparatively bloodless but massively more widespread, continues, impervious to endlessly repeated exposés of its iniquity, and of its mockery of American claims of world leadership in civil rights, personal liberty, and the rule of impartial law.
Bill Keller, writing in the New York Times on January 26, optimistically stated that “in recent years Americans have begun to wise up to the idea that our overstuffed prisons are a shameful waste of lives and money. . . . Our prisons are an international scandal.” He was correct, certainly, but yet no legislative spirit of reform takes root, apart from the aborted Webb commission. U.S. and district attorneys have been fattened to a state of hypertrophic authoritarian obesity, first, in the 1970s, by black radicalism and the agitations of the feminists to the effect that almost all American males were potential unrepentant rapists, and then by the pandering of the whole political class. The Left, Robert Kennedy, and Nelson Rockefeller were as remorseless as Richard Nixon and Ronald Reagan in all the rubbish about mandatory minimums, three strikes and you’re out, truth in sentencing, and so forth, as legislators usurped the role of judges and abolished parole. They all postured about the War on Drugs, which has cost over $1 trillion and imprisoned more than a million people, while drugs pour in in unprecedented quantities through America’s porous southern border. Obviously the government isn’t serious, because the greatest military power in the world could certainly secure its border if it were serious. The correctional officers’ unions are the world’s largest and most effective agitators for unskilled labor, and the private-sector prison companies that ignore any rehabilitative efforts and run no-frills prisons satisfy the need of the states to avoid more debt but cost much more by the demands they make for occupancy levels. They are both, like the country’s police associations, a constant and effective pressure for more convictions on more charges, and for longer sentences. It is a financially corrupt, morally bankrupt, and broadly inhumane process, and there are no visible forces of reform among elected officials.
But there are decent and altruistic people as well as budgetary restraints. It is America, after all, the land of Norman Rockwell and Henry David Thoreau, as well as of unrestrained prosecutors, and decency has its rights. Keller recounts in his article that pressures for less absurdly severe sentences are starting to prevail, including in California and New York, despite resistance from prosecutors, who like them as bargaining chips in their stacked plea-bargain negotiations; and that supervision, which involves twice as many people as the incarcerated (roughly five million, against half that are actually in custody), is being revised to try to do other than ensure the maximum possible recycling of released people back into the prison system. Specialized courts, for drugs, veterans, and domestic violence, have been established with some aptitudes for addressing distinctive problems. Some employers are dispensing with the inquiry about previous arrest, Target Corporation being the principal such employer. Keller reports that more sophisticated police work adds to deterrence and removes some of the contagious criminals, but notes that all these trends are at war with the endless pressure from prosecutors, police, the private prison industry, and correctional officers’ unions (almost a million strong and very aggressive politically).
What is missing is the genuine reformer, the politician prepared to advocate, vote for, and sell to his constituents the virtue of making America a fairer place. If this group does not assert itself in its real numbers, it will not be just the victims of the prosecutocracy who lose. The United States cannot be governed exclusively by police chiefs and less creditable self-seekers.
— Conrad Black is the author of Franklin Delano Roosevelt: Champion of Freedom, Richard M. Nixon: A Life in Full, A Matter of Principle, and the recently published Flight of the Eagle: The Grand Strategies That Brought America from Colonial Dependence to World Leadership. He can be reached at [email protected].