Left-wing prosecutors and judges have been thwarted in their attempt to rewrite a congressionally enacted statute.
Left-wing prosecutors and judges have been thwarted in their attempt to rewrite a congressionally enacted statute.
I contended late last year (here and here) that it is past time for some hard decision-making about the federal government’s role in prosecuting narcotics crimes. Our penchant for ignoring or caricaturing big problems in the service of partisan warfare defies sober deliberation. But the big questions surrounding drug policy — e.g., whether federal criminal law is the best way to address drug abuse — are pressing. And the rationalizations by which we avoid dealing with them exacerbate other distortions in our justice system.
This week, the Supreme Court let stand a ruling by a divided federal appellate panel, which upheld a congressional statute that bars the use of physical premises to facilitate illegal drug trafficking and consumption. The law was enacted in 1986 with the zealous support of Joseph Biden, who was at the time the top Democrat on the Senate Judiciary Committee.
There was an open-and-shut case for upholding the law. While its enactment was animated by the blight of “shooting galleries” and “crack houses,” it was crystal-clear in prohibiting the maintenance of any property for the manufacture, distribution, or use of controlled substances — except for hospital-type facilities as it defined them, which would not, in any event, be permitted to administer illegal or non-prescribed drugs. No one seriously questions Congress’s constitutional authority to enact such a law.
Yet, the case managed to reach the Supreme Court because of inroads that progressive prosecutors, activists, and jurists have made in undermining how laws are made and enforced. Here, they were trying to super-legislate an exemption from the drug laws for another of their trendy experiments: “supervised-injection safe houses,” where users would be permitted to inject or ingest illegal drugs under medical supervision.
Think of it as today’s worst trends in law enforcement — or, I should say, law non-enforcement — exacerbated by the worst legal excesses of the 1970s.
Of the present-day anomalies, the one most in need of fixing is the distortion of a formerly unexceptional resource-allocation doctrine, prosecutorial discretion. It is now a talisman by which officials at all levels of government — often prosecutors — effectively void statutes they are sworn to enforce, thus making a mockery of their sworn promises to execute the laws faithfully.
The concept of prosecutorial discretion is as simple as it is unavoidable. There are many more crimes committed than there are law-enforcement resources (police, prosecutors, public defenders, judges and court staff, prisons, post-incarceration monitors, etc.) available to investigate, make arrests, prosecute cases, conduct related court proceedings, sentence offenders, detain them, and finally supervise them for years after release from custody. Of necessity, then, prosecutors — the executive officials who decide which cases will be pursued — have to prioritize, choosing to prosecute some offenders and let others go.
When this discretion is being exercised properly, prosecutors determine, on a case-by-case basis, which misconduct warrants enforcement action, weighing such obvious factors as the seriousness of the crime and the criminal history of the perp.
In recent years, though, prosecutorial discretion has been warped into a license to immunize entire categories of crime (e.g., illegal immigration or small-scale sales of illegal drugs) from prosecution. That is not the routine, necessary exercise of charging discretion in individual cases. It is the de facto gutting of laws enacted by the people’s representatives. And perversely, it is carried out by the very officials whose job is to enforce those laws.
Having perfected this abusive technique (particularly in the Obama years), progressives are now pushing it several steps further. Not content with ignoring criminal statutes, they dream up new artifices to promote the violation of laws they refuse to enforce.
Hence, supervised-injection safe houses.
From their premise that prosecution is never the suitable response to law-breaking, progressive prosecutors maintain that the use of illegal drugs is a medical problem that should not be criminalized. Drug use, they say, stems from addiction, which is a disease, and addicts are thus going to ingest drugs anyway. Rather than arresting them or looking the other way, the thinking goes, society should provide safe spaces where users can inject or ingest drugs under the watchful eye of medical practitioners. This, they reason, would minimize the transmission of disease otherwise caused by unsanitary practices (e.g., sharing dirty needles and other narcotics paraphernalia), in addition to providing opportunities for medical practitioners to try to steer addicts away from drug abuse.
It’s a provocative theory. I am not here to tell you that an idea is bad just because a progressive has thought of it — or even to ask why many of the same people who’d have handcuffs slapped on the unvaccinated would want to facilitate law-breaking by intravenous heroin users.
There are, however, several obvious downsides to the safe-house proposal, not least that it would encourage illegal drug use. This, even though the safe houses would provide sanctuary for only a small fraction of illegal drug users. Derivatively, the scheme would undermine criminal enforcement of felony narcotics trafficking. Close your eyes, and you can already hear progressives twaddling that dealers fill a need whose real cause is that all-purpose culprit, society; and that prosecuting small-time drug peddlers results in racial disparities — nabbing the gangbangers of color but not white doctors who over-prescribe opioids. (For now, progressives are not suggesting that medical specialists at the supervised-injection safe houses should supply the illegal drugs to the users . . . but give them time.)
While this is all very interesting, it misses the major point. Maybe the case for decriminalizing and safeguarding the use of illegal drugs is strong, or maybe doing so would have terrible unintended consequences. But either way, it is not a case for prosecutors to make, or an outcome for courts to impose. It is a question for the people’s legislative representatives to settle. Under our system of government, legislatures — not prosecutors, courts, or activists — are tasked with balancing the trade-offs that must be made in addressing drug abuse. The job of prosecutors and judges is to give effect to the laws that democratically accountable legislators write, not to rewrite them to progressives’ liking.
This is where the legal overreach of the ’70s comes in. Before President Reagan named Justice Antonin Scalia to the Supreme Court, we endured an era of progressive judicial imperialism. Courts saw themselves as at liberty, by dint of their raw power, to ignore the words of statutes. Instead, they purported to scour legislative history in order to divine what Congress was trying to accomplish (which reliably turned out, mirabile dictu, to be the judges’ own policy preferences) and then twisted the statutory words, or flat-out rewrote them, as necessary to accomplish their — um, I mean, Congress’s — purpose.
Scalia blazed a trail back to statutory textualism, which holds that the judge’s legitimate task, much like the prosecutor’s, is to apply the law as enacted, giving pride of place to the statute’s words as they would be ordinarily understood.
Sadly, judicial imperialism is now back in fashion, particularly in the lower federal courts, where hundreds of progressives appointed during President Obama’s eight years sit awaiting Biden-appointed reinforcements. The textualist-dominated Supreme Court is likely to invalidate a good deal of their mischief, but not all of it. Relatively speaking, the High Court resolves just a handful of cases compared with federal district and circuit courts.
In 2019, progressive activists, egged on by progressive prosecutors and Pennsylvania Democrats, got their supervised-drug-safe-house proposal in front of an Obama appointee, Philadelphia federal judge Gerald McHugh. Although the proposed safe houses would flagrantly violate a narcotics law Congress enacted in the eighties, McHugh conveniently intuited that they should be permitted because the sponsoring activists’ hearts are pure — they want ultimately to “reduce drug use, not facilitate it.”
This wayward ruling was fought by the Trump Justice Department, led by Bill McSwain, the Trump-appointed U.S. attorney who is now seeking the Republican nomination for Pennsylvania governor. Lined up on the other side was a cabal of progressive prosecutors who filed amicus briefs, including eventually at the Supreme Court. In January, a three-judge Third Circuit panel reversed Judge McHugh. The majority held, very simply, that Congress had made it a crime to operate premises for the facilitation of illegal drug use, so courts were not at liberty to immunize such operations, regardless of the merits of the would-be operators’ policy ideas and intentions.
Still, one dissenter — Judge Jane Richards Roth, a George H. W. Bush appointee — wondered how the Justice Department could defend the literal construction of a statute that would permit the prosecution of parents who allow their addicted children to use drugs in the home (premises in which the addicts are living, not just using for drug use). Judge Roth is very accomplished, one of just a handful of women to graduate from her Harvard Law School class in the sixties, after a stint in the State Department. Surely she must know that, in all kinds of contexts, the Justice Department declines to prosecute family members tragically caught up in their loved ones’ crimes. The literal application of many criminal statutes could theoretically lead to absurd results, but in the real world it doesn’t. That is due to the proper application of prosecutorial discretion: Common sense almost always stops the government from bringing cases that would make a jury more outraged at the heartless prosecutor than the anguished defendant.
In any event, the abstract possibility that a statute could be applied literally with absurd results is no reason, a priori, to void a statute that a court is duty bound to uphold if it was passed within the bounds of Congress’s constitutional authority. It is, moreover, the prosecutor’s obligation to enforce such statutes — faithfully, not inanely.
The Third Circuit and the Supreme Court are not telling progressives that they can’t conduct their dubious sociological experiments. They’re just saying that in our system, the lab mice get to elect representatives, and it is those representatives who must be convinced to enact such experiments into law. Progressive prosecutors and judges do not get to impose their whims by fiat.