‘I know you lied in your testimony, but I understand why you believed you had to do it.”
If there was an audible sound in the courtroom after these words left the lips of the sentencing judge, it was my jaw caroming off the floor. I was a young prosecutor and it was the mid Eighties, before federal sentencing reforms substituted the public’s sensibilities for the judges’ in the matter of serious crime.
The defendant had been convicted of selling cocaine, an offense he compounded by perjuring himself in testimony so absurd that even my novice cross-examiner’s skills were enough to expose it. The judge was a notoriously defendant-friendly sentencer, but even jurists of that bent of mind do not like having their intelligence insulted: When a serious felony was complemented by blatant lying under oath, a serious jail sentence was in order.
But not this time. To my dismay, the judge shrugged his shoulders and did what lots of judges did in those days, and what Washington’s bipartisan political class seems to want them to start doing again: He walked the defendant out the door.
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Thirty years have not dimmed the memory of what was then a commonplace. Young Americans for whom the Reagan administration is ancient history, New Yorkers who grew up in the post-Giuliani City — they have no memory of what it was like from the Sixties into the early Eighties.
For them, the revolution in crime-fighting that so dramatically improved the quality of American life is not revolutionary. It is simply . . . life. There is nothing hard-won about it. It is not informed by the dark days when rampant crime was fueled by a criminal-rights campaign premised on many of the same loopy ideas that undergird Washington’s latest fetish, “sentencing reform.”
The worst of those ideas is to roll back “mandatory minimum” sentences. These are terms of imprisonment, often harsh ones, that must be imposed for serious crimes. Mandatory minimums tie the hands of judges, mandating that they take hard criminals off the streets rather than slap them on the wrists.
Before the Reagan era, federal penal laws prescribed potentially severe sentences for serious offenses — decades of jail time, up to life imprisonment. This reflected the judgment of the crime-plagued American people, as expressed by their representatives in Congress.
There was a big flaw in the system, though: The penal laws had no floors, no minimum amount of jail time that had to be imposed, significantly differentiating federal sentencing from state practice.
A defendant convicted of federal felonies — let’s say heroin dealing or a violent extortion — might face a sentence of up to 50 years. Sounds draconian, but the reality was quite the opposite, because the judge was also free to impose the minimum sentence of no time whatsoever. What punishment to impose within that expansive statutory range from zero to 50 years was wholly the judge’s call. In effect, this nearly boundless discretion transferred control over punishment for crime from the public to the courts.
Federal judges tend to be very good at the difficult job they are trained to do: apply law, which is frequently arcane and sometimes inconsistent, to factual situations, which have their own complexities. This skill, however, does not necessarily translate into expertise in making punitive judgments that are governed less by legal rules than gut feeling — gut feeling being what controls broad discretion.
#share#Let’s take the discussion out of the criminal-law context for a moment. When same-sex marriage has been on the ballot, it has lost in most states. When it gets to the Supreme Court, though, it wins, with Anthony Kennedy and four other unelected lawyers reasoning, if that’s the word for it, that SSM opposition is an essentially bigoted denial of the “right” they’ve dreamt up “to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” — the operative word here being “mystery,” not law.
This does not make Anthony Kennedy and his colleagues bad people. But it does illustrate that judges are not exactly the vox populi. They tend to be products of the schools in which they’ve excelled and the profession in which they’ve thrived.
Both the schools and the profession are considerably more left-wing than the public, on matters including those of crime and punishment. When the New York Times writes self-parodic headlines such as “Crime Rates Are Falling, but Prisons Keep on Filling,” most of the public sensibly asks, “What do they mean but?” Many judges, to the contrary, think, “Yes, they have a point.” And that was even before what will end up being close to 400 new judges were put on the bench by Barack Obama — a longtime criminal-rights advocate who once enthusiastically endorsed a book by former terrorist Bill Ayers that compares the U.S. justice system to South African apartheid.
Even if many judges were not instinctively sympathetic to arguments against harsh sentencing, sympathy comes with the institutional territory. The judge’s duty is not to promote public safety; it is to ensure that parties before the court receive justice. It is a bedrock conceit of those who toil in the justice system that the public perception of justice is just as vital as the objective reality of justice. Thus, the judge has great incentive to bend over backward to give convicted defendants every bounce of the due-process ball.
Add to that the human element: It is a lot easier to call for a harsh sentence from the peanut gallery than to be the judge who has to impose a sentence after a desperate plea for leniency has been made and while the defendant’s mother, wife, and kids weep in the first row.
So whether the pressures were ideological, institutional, or rooted in human nature, judges were often weak sentencers. That weakness translated into the inadvertent promotion of crime by failing to disincentivize it and failing to sideline career criminals. Mandatory minimums were thus enacted by overwhelming congressional margins in order to divest judges of the discretion to impose little or no jail time for serious crimes and habitual criminals.
The criminal-justice system has flaws badly in need of correction. But the main problem is not severe sentencing. It is over-criminalization.
It is the latest Beltway fashion to demand that mandatory minimums be rolled back, if not repealed, on the theory that incarceration causes rather than drastically reduces crime. Or, since that claim doesn’t pass the laugh test, on the theory that incarceration is racist — the great American conversation ender. Beyond the in terrorem effect of the racism smear, the latter rationale relies on the overrepresentation of minorities, particularly blacks and illegal aliens, in the prison population — and banks on your being too cowed to bring up the overrepresentation of minority communities in the crime-victim population.
Alas, a “reform” that reduces mandatory minimums will benefit only one class of people — serious felons who commit many more crimes than they are prosecuted for. And racism? Please. We have, to take one pertinent example, a harsh mandatory minimum sentence for predators who are convicted of a felony after having previously being convicted of three other serious crimes. Congress wasn’t targeting race; it was targeting sociopaths.
Understand, I am not contending that the criminal-justice system is without flaws badly in need of correction. But the main problem is not severe sentencing. It is over-criminalization.
Too much formerly innocent private conduct has become prohibited, making criminals out of essentially law-abiding people. Law is supposed to be a reflection of society’s values, not a tool by which society is coerced to transform its values. Moreover, when the statutes, rules, and regulations proliferate to the point that it becomes unreasonable to expect average people to know what is forbidden, we no longer have a nation of laws; we have a nation of men arbitrarily deciding which of the presumptively guilty get punished and which go unscathed.
If a problem is not accurately diagnosed, it will not be cured. There is a prescription for what ails us, but it is most certainly not a repeal of the severe sentences enacted to address serious crime. Nothing that rewards real criminals at the expense of the people they victimize should trade under the name of “reform.”
— Andrew C. McCarthy is a policy fellow at the National Review Institute. His latest book is Faithless Execution: Building the Political Case for Obama’s Impeachment.
editor’s note: This article has been amended since its initial publication.