In Sentencing, Tough Is Not Necessarily Smart

Jacob Sullum
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Posted: Jan 25, 2017 12:01 AM
In Sentencing, Tough Is Not Necessarily Smart
Barack Obama, who shortened more prison sentences than any other president in U.S. history, has been replaced by a man who views that record of mercy as evidence of dangerous laxity. Donald Trump's criticism of Obama's commutations not only suggests he will be much less inclined to use his clemency power, but also casts doubt on the prospects for much-needed federal sentencing reforms that not long ago seemed to be on the verge of passing with bipartisan support.

After a very slow start, Obama ultimately commuted the sentences of 1,715 federal prisoners, more than his 13 most recent predecessors combined. Almost all of the prisoners who received commutations were nonviolent drug offenders, 568 of whom had been sentenced to life.

Many of these prisoners were serving sentences longer than they would have received under current law. Even with the commutations, they will end up spending long stretches behind bars: 20 years instead of life, for example, or 13 years instead of 25.

Trump nevertheless took a dim view of Obama's commutations while running for president. Last August, at a rally in Kissimmee, Florida, Trump scornfully held up a bar graph that the White House had cited with pride, comparing Obama's commutations to those of recent presidents.

"Some of these people are bad dudes," Trump said. "These are people that are out; they're walking the streets. Sleep tight, folks."

Trump's pick for attorney general, Sen. Jeff Sessions, R-Ala., criticized Obama's commutations in even stronger terms, calling them an "unprecedented" and "reckless" abuse of executive power. Sessions, who is expected to be confirmed soon, said Obama was "playing a dangerous game to advance his political ideology."

Like Trump, Sessions conflates drug offenders with violent criminals. As Alabama's attorney general in 1996, he supported a mandatory death penalty for people convicted twice of drug trafficking, which would have been clearly unconstitutional. During his confirmation hearing on January 10, he said he no longer favors that policy. But Sessions still argues that "drug trafficking can in no way be considered a 'non-violent' crime," even when it does not involve violence.

Sessions thus rejects a central point of agreement underlying bipartisan support for sentencing reform: that there is an important distinction between violent criminals and offenders who engage in peaceful activities arbitrarily proscribed by Congress. He was a leading opponent of the Sentencing Reform and Corrections Act, which would have made the shorter crack sentences that Congress approved in 2010 retroactive, reduced various other drug penalties, tightened the criteria for certain enhanced punishments, and broadened the criteria for the "safety valve" that lets some drug offenders escape mandatory minimums.

Sessions himself supported the crack sentencing reforms enacted in 2010, along with every other senator, reflecting a broad recognition that the existing penalties were excessively severe. Yet he has steadfastly opposed extending the benefit of the new rules to current prisoners, whether through legislation or through clemency.

Trump, who ran on a "law and order" platform and at his inauguration last week promised to end the "carnage" caused by "crime and gangs and drugs," seems inclined to take his cues on criminal justice from his attorney general. That would be a mistake, because an indiscriminately punitive approach is not only unjust but inefficient, undermining public safety by wasting resources on imprisoning people who pose no real threat.

Paul Fields, who was included in Obama's final batch of commutations last week, received a sentence of nearly 16 years after police found 256 marijuana plants at his home in Jonesborough, Tennessee. Obama reduced his sentence to 10 years.

It is hard to believe that Fields deserves a 10-year prison sentence for doing something that violated no one's rights, something that is now legal in eight states. It is impossible to believe that forcing him to serve his full sentence would make the rest of us safer. Yet that is what you have to believe if you think federal criminal penalties are fine as they are.