Law & the Courts

The President Needs to Show More Caution in Commuting Felons’ Sentences

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Serious drug and firearm criminals should not be candidates for early release.

Last week, President Obama commuted the sentences of 98 federal drug and firearm felons. These commutations were the latest in a long line of executive clemency actions. President Obama has now commuted the sentences of 872 federal offenders — more than the last eleven presidents combined.

No doubt there are instances where a guilty defendant receives an overly harsh sentence. Perfect justice is not possible in an imperfect world.

But we need to be very careful about letting convicted criminals out of jail early, particularly ones convicted of serious drug and firearm offenses. Illegal drugs such as heroin, methamphetamine, and cocaine inflict incalculable harm on our communities, destroying lives and ravaging families. Gun violence similarly shatters the lives of victims and their families and has a profoundly negative impact on community well-being.

That’s one reason I’ve taken a cautious approach to many of the criminal-justice reform efforts advanced recently in Congress. I agree with a number of my colleagues that our system of mandatory minimum sentences can produce unjust outcomes and that empowering judges to sentence below the statutory minimum in certain defined situations may make sense.

When it comes to releasing offenders currently in prison, however, we must be cautious. It’s important to keep in mind, for instance, that many incarcerees pled down from more serious crimes. That is, the offense for which they’re serving time was not the offense initially charged, or the most serious offense for which the government could have won a conviction. In the plea-bargaining process, both sides make concessions in order to avoid the uncertainty of trial. The defendant agrees to plead guilty, while the government agrees to forego more serious charges. Thus an individual caught dealing drugs may agree to plead guilty to simple possession, or a person arrested with ten kilos of cocaine may plead guilty to possessing a much smaller amount.

The point is not that such individuals should face harsher penalties than their plea deals provide for — that would be unjust — but rather that an offender’s crime of conviction does not necessarily reflect his or her actual danger to the community. Keep this in mind when you hear talking points about “low-level offenders.” Many such offenders in fact committed more serious crimes, but pled down to lesser offenses to avoid trial.

A review of President Obama’s recent batch of commutations reveals the perils of an overly liberal approach to sentence reductions. Among the 98 offenders receiving commutations are 19 individuals convicted of firearm offenses, including use of a firearm during a drug-trafficking crime. Seventy-five of the commutations involved the distribution or intended distribution of cocaine, 19 involved the distribution or intended distribution of meth, and four involved the distribution or intended distribution of heroin. These are not 18-year-olds selling small amounts of marijuana to their friends in the locker room. These are hard-core drug traffickers. Many were caught with more than a kilogram of cocaine or heroin.

We cannot afford to be letting hundreds of serious drug traffickers out early without assurance that they will not return to their criminal ways.

With our nation — and my home state — in the midst of an ongoing drug epidemic, we cannot afford to be letting hundreds of serious drug traffickers out early without assurance that they will not return to their criminal ways. One individual whose sentence President Obama recently commuted committed his first felony when he was only 16 years old and ran the largest cocaine ring in Topeka, Kansas. This is hardly the type of offender who should be a candidate for early release.

We’ve made real legislative progress recently in the fight against drug abuse — particularly prescription-drug abuse. This summer, Congress passed the first comprehensive bill to address the prescription-drug crisis at the national level. I negotiated the legislation with my House and Senate counterparts and fought hard to ensure the bill included effective programs to educate children about the dangers of prescription-drug abuse and to provide treatment for individuals addicted to prescription medications. I also authored legislation this Congress to facilitate closer collaboration between law enforcement and prescription-drug distributors and to incentivize self-reporting of Controlled Substances Act violations. Both of these bills are now law.

There’s still more work to be done in the fight against illegal drugs, and it’s important that we not undermine our efforts through ill-advised commutations and early releases. I’ve supported proposals to enable prisoners serving first-time sentences to qualify for transitional custody — such as home confinement — by completing anti-recidivism training and undergoing a thorough evaluation by prison officials. That is a far cry from cutting years off the sentences of repeat drug traffickers caught with tens or hundreds of thousands of dollars’ worth of hard-core illicit drugs.

Remedying overly harsh prison sentences is a laudable goal, but we must be smart about how we do so. The last thing we should want is to let serious drug and firearm offenders out early only to have them fall back into their previous lives of crime. Our families and communities deserve better.

Orrin Hatch is the senior member and former chairman of the Senate Judiciary Committee.

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