So now it’s the pardon power.
To this point, in making a mockery of his core constitutional duty to execute the laws faithfully, the broad law-enforcement discretion the Constitution vests in the executive branch has been President Obama’s preferred sleight of hand. In reality, “prosecutorial discretion” is merely a resource-allocation doctrine peculiar to criminal law: a recognition of the obvious fact that enforcement resources are finite; that it is neither possible nor desirable that every penal infraction be prosecuted; and therefore that priorities must be established about which cases should be pursued, which left to state law-enforcement to handle, and which overlooked. The doctrine has never been what the president has turned it into: a license not merely to ignore but to rewrite laws — not just penal laws; any laws — with which he disagrees on policy grounds. Thus is “prosecutorial discretion” the subterfuge for usurping congressional law-making power — the maze of unilateral waivers, amendments, and whole-cloth weaving that marks Obama’s enforcement of the “Affordable” Care Act, the immigration laws, and other federal statutes.
Alas, the next item on the transformational-change agenda is undoing prior administrations’ faithful execution of the narcotics laws. The forward-looking prosecutorial-discretion doctrine is unavailing to address the past. That is where the pardon power comes in.
The Obama administration does not like the federal narcotics laws. The enmity goes way beyond the president’s nostalgic sympathy for pot smokers. And it has nothing to do with the philosophical objections of libertarians to the criminalization of drug use — we are talking, after all, about an administration whose zeal to intrude on our private lives could make Michael Bloomberg blush. Instead, like Justice Sonia Sotomayor’s incoherent dissent in the Supreme Court’s affirmative-action ruling this week — she argues that a public referendum banning racial discrimination is somehow racially discriminatory — the administration’s disdain for the drug laws owes to its obsession with race and the poisonous politics that flow from it.
For years before they came to power, the president and his underlings belonged to a confederacy of leftist defense lawyers, academics, and “community organizers” — the people who gave us the criminal-rights revolution of the 1960s and the resultant soaring crime rates of the 1970s. Their cart-before-the-horse illogic gave us “disparate impact”: The theory that perversely erases from our consideration the only thing that makes racism racism — the intention to discriminate by race. Instead, they conveniently overlook the social, cultural, and government-policy roots of crime rates in minority communities, and instruct us to deduce systemic racism from the mere happenstance of higher minority conviction rates. The absence of a scintilla of evidence of racism in the text or enactment of the criminal laws makes no difference.
This thinking pervaded the bench every bit as much as the bar and the law schools. Criminals were often given absurdly light sentences for serious offenses. Consequently, when the public finally demanded that meaningful action be taken against the rising tide of crime, elected officials who answer to the voters took some sentencing discretion out of the hands of judges who do not.
In connection with drug-trafficking (as well as other crimes in which violence is a commonplace), this meant enacting “mandatory minimum” sentences — incarceration floors that, though a staple of state penal systems, were unusual in the federal code. In narcotics law, mandatory-minimum provisions were driven by the quantities involved in an offense, and varied from drug to drug. For example, if a distribution crime involved a kilogram of heroin, 5 kilograms of powder cocaine (cocaine hydrochloride), or 50 grams of crack (cocaine base), the judge had to sentence the defendant to at least ten years’ imprisonment. For crimes involving 100 grams of heroin, 500 grams of powder cocaine, or 5 grams of crack, the mandatory minimum was five years in the slammer.
Note the bracing disparity between the treatment of crack and powder cocaine, the former punished at a 100:1 ratio to the latter. This has been a cause célèbre of the Lawyer Left for years. Many small-time crack dealers are black and many big-time cocaine importers and distributors are not. Viewed through the “disparate impact” lens, the disparity can only be explained by racism — and never you mind that white defendants caught selling crack (of which there are plenty) are treated exactly the same as black and Latino crack defendants, and mutatis mutandis for powder-cocaine traffickers.