For President Bush, one controversial act of clemency shouldn't be enough. Justice demands that he follow up his commutation for former Dick Cheney chief of staff I. Lewis "Scooter" Libby by commuting the sentences of two Border Patrol agents convicted of illegally shooting a Mexican drug smuggler.
The case of agents Ignacio Ramos and Jose Alonso Compean has long been a cause celebre on the populist right. It has now broken into the mainstream with a Judiciary Committee hearing chaired by California Democrat Dianne Feinstein in which all senators present took exception to how the case was handled. Feinstein has written a letter with Republican Sen. John Cornyn to President Bush calling for commutation, giving the agents' case an important bipartisan imprimatur.
The agents would have been forgotten long ago if their case hadn't been kept alive by talk-radio hosts and a few right-wing congressmen, together with CNN's resident demagogic huckster Lou Dobbs. Unfortunately, they have at times seemed to be running a campaign to sanctify Ramos and Compean, making them the anti-immigration right's equivalent of the various criminal-heroes of the left.
Make no mistake: Ramos and Compean shot an unarmed man who was fleeing them and covered up what they had done. These were crimes, and the rule of law doesn't truly exist unless it applies to members of law enforcement who break the rules.
On Feb. 17, 2005 in the El Paso, Texas, sector, the two agents came across Osvaldo Aldrete-Davila, who drove away in his van and then fled on foot. Ramos and Compean fired at him 15 times, hitting him once before he got away. Compean gathered up the shell casings, and the two agents filed a false report leaving out the shooting. Ramos and Compean knew they had been wrong to fire at Aldrete-Davila.
Border agents discharge their weapons all the time -- 144 agents have done it throughout the past two years -- without being prosecuted. What's impermissible is to shoot someone who represents no threat. It turned out Aldrete-Davila's van contained roughly 750 pounds of marijuana, and he is exactly the reprehensible drug runner that the agents presumed him to be. But that doesn't justify shooting -- and possibly killing -- him on sight.
A West Texas jury heard the agents' defense -- including that they thought Aldrete-Davila was armed -- and rejected it. The injustice is in the sentencing. The prosecutor offered Ramos and Compean plea bargains for 18-24 months in jail, which seems appropriate. When they rejected the pleas, they went to trial on 12 counts, including discharging a weapon in the course of a violent crime. Unbeknownst to the jury, that firearms charge carries a 10-year mandatory minimum sentence and is responsible for Ramos and Compean getting 11 and 12 years, respectively.
The statute in question was meant to be a way to deter criminals from carrying weapons, and, as Feinstein and Cornyn write, "should be used as an enhancing charge against drug dealers and individuals who commit violent crimes." Except in truly extraordinary cases, applying it to law-enforcement officers who carry their weapons as a matter of course is perverse.
The better part of prosecutorial discretion would have been to avoid the firearms charge. In similar cases -- for instance, an agent who shot at a van full of illegals and got a year and a day -- prosecutors had restrained themselves. But once they brought the charge and the jury found the agents guilty of it, the judge was locked into sending them to prison for more than a decade. Prison is particularly hellish for high-profile members of law enforcement, and now Ramos and Compean sit for their own protection in solitary confinement, where they will be for years.
This is wrong, and it is a case where only an act of executive clemency can counterbalance the excesses of the criminal-justice system. Agents Ramos and Compean don't have the fancy friends of Scooter Libby, but they deserve the president's mercy all the same.