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.
Just as our counterterrorism policy is skewed by over-lawyering — normal people are more concerned about whether our methods prevent terrorist atrocities than whether they give enough due process to terrorists — so too is law-enforcement policy. The Lawyer Left agitates over the racial composition of narcotics dealers. But if lawmakers were factoring race into the equation at all when they wrote the drug laws — and the statutes themselves are race-neutral, as the Constitution mandates — it was the victims of narcotics trafficking they had in mind. The only disparate impact of significance to normal people, those not obsessed with race or criminals’ rights, is the impact that crack dealing has had on minority communities. They have been ravaged.
It is entirely sensible to argue that, even given the heightened addictive nature of crack and the infamous street violence that’s associated with it, a 100:1 ratio is disproportionate. Indeed, as I have noted, the disparity has been narrowed — albeit not to a degree that satisfies many thoughtful critics. But it is and has always been lunacy to contend that racial animus explains the harsh treatment of crack dealers. That is why the laws have not been significantly changed through our constitutional legislative process. Elected officials who have to confront the voters — including voters in states, cities, and communities that confront crack trafficking — have good reason to worry about the backlash from a rerun of That Seventies Show.
Not good enough for the Lawyer Left, so two of its most prominent members, President Obama and Attorney General Eric Holder, will use the executive’s pardon power to rewrite the narcotics statutes. This is a gross abuse. The pardon power exists to mitigate injustice in individual cases. The president, to the contrary, proposes to use it to target laws he disagrees with — laws whose constitutionality is beyond dispute but to which he objects on policy grounds. Which is to say: laws that it is his solemn constitutional duty to execute faithfully, not undermine.
As usual, the administration’s story is rife with fraud. Holder carefully talks about “non-violent” drug “offenders.” Obama riffs about “kids or individual users” supposedly “lock[ed] up . . . for long stretches of jail time.” You are left to imagine poor addicts who never hurt anyone but themselves, languishing for decades in some super-max prison. Yet federal drug enforcement targets felony drug dealers, not simple possession of drugs — the latter is left to the states. Mere users of marijuana and crack are not wasting away in federal penitentiaries. Moreover, an offender sentenced under a mandatory-minimum provision has necessarily committed a significant narcotics felony; the felony distribution of minor amounts of narcotics is not subject to a mandatory minimum, and judges maintain discretion to sentence those offenders to little or no jail time. Obama and Holder are talking about freeing what could amount to thousands of serious criminals.
The administration also claims that, at least at the start, it is going to commute only the sentences of convicts who have served at least a decade in prison, and only for the purpose of giving them the benefit of a recent change in the law. In the Fair Sentencing Act of 2010 (FSA), Congress reduced some drug penalties. Thus, Obama and Holder claim they are merely giving pre-2010 drug convicts the benefit of the 2010 law. But Senator Jeff Sessions (R., Ala.), who was deeply involved in the debate over passage of the FSA, points out that retroactivity was a major bone of contention. The law, like most legislation, was a compromise that would not have been enacted without the assurance that it would have only prospective effect. That is, Obama is using the pardon power as a smokescreen to impose by decree a measure Congress specifically refused to pass by the Constitution’s legislative process.
A lawless president does more than violate his oath and demonstrate his unfitness. He forfeits trust. You say you want immigration reformed? You say you want drug policy rethought? Opinions on these matters vary widely, but one thing is for certain: It makes no sense to legislate on a subject that hinges on effective law enforcement unless you can trust that the law you pass will be the law. That means you have to be able to trust the president. With this president, it means waiting for the next president.
— Andrew C. McCarthy is a senior fellow at the National Review Institute. He is the author, most recently, of Spring Fever: The Illusion of Islamic Democracy.